Articles of Incorporation

(Section 415B-34, Hawaii Revised Statutes)

(as received by Department of Commerce and Consumer Affairs on August 5, 1998)

The undersigned, desiring to form a nonprofit corporation under the laws of the State of Hawaii, certify as follows:
 

The name of the corporation shall be EWA BY GENTRY COMMUNITY ASSOCIATION.

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The location of the corporation shall be in the City and County of Honolulu, State of Hawaii, and the address of the initial office shall be 737 Iwilei Road Honolulu, Hawaii 96817.

This corporation does not contemplate pecuniary gain or profit to the members thereof, and the specific and exclusive purposes for which it is formed are to provide for the management, maintenance, protection, preservation, architectural control, planned development and mutually compatible use of the property described in Exhibit "A" attached to the Declaration hereinafter described (hereinafter called the " Community Area") and all additions thereto, and to promote the health, safety and welfare of its members, all in a manner consistent with the Articles of Incorporation, the By-Laws hereinafter mentioned and the EWA by Gentry Community Area Declaration of Covenants, Conditions and Restrictions dated July 32, 1988, and filed in the Office of the Assistant Registrar of the Land Court of the State of Hawaii as Document No. 1568352 (hereinafter called the Community Area Restrictions" or the "Declaration").

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In furtherance of the foregoing objects and purposes and in accordance with the laws of the State of Hawaii applicable to nonprofit corporations, the corporation shall have succession by its corporate name in perpetuity and shall have the power:

(a) To provide, own, acquire, lease, plan, design, develop, construct, reconstruct, maintain, restore, repair, manage and administer, as the case requires, utility facilities and services, recreational areas and facilities, park and landscape areas, common areas and such other improvements, facilities and service in or upon the common areas of the Community Area, all as provided for in the Community Area Restrictions.

(b) To obtain, maintain and pay for all such insurance policies or bonds deemed appropriate for the protection and benefit of the Community Area as provided for in the Community Area Restrictions.

(c) To pay all expenses incident to the conduct of the business of the corporation.

(d) To enforce by any lawful means any and all covenants, conditions, limitation, restrictions and agreements applicable to the Community Area under and pursuant to the Community Area Restrictions including such or otherwise.

(e) Insofar as permitted by law, and in accordance with theCommunity Area Restrictions, to do any other thing that will promote the common benefit and enjoyment of the Owners of lots and/or dwelling units in the Community Area including the adoption and publication of rules and regulations governing the use of common areas, improvements and facilities in the Community Area and the personal conduct of any person thereon and the establishment of penalties for infractions thereof.

(f) In connection with the exercise of any powers conferred upon the corporation, to levy regular assessments upon its members in accordance with the Community Area Restrictions, which assessments shall constitute liens upon the lands assessed subject to the enforcement provisions hereinafter provided.

(g) In order to defray extraordinary expenses incurred by the corporation as a result of the failure or refusal of any members to abide by or otherwise to comply with the Community Area Restrictions, the Design Committee Rules or the Association Rules hereinafter mentioned or to enforce compliance with same, to levy special assessments and fines against such members, which assessments and fines shall constitute liens upon the lands assessed, subject to the enforcement provisions hereinafter provided, and the rights to which liens may be pledged, hypothecated or transferred as may be required.

(h) To collect and enforce payment by any lawful means, of all charges and assessments and fines provided for herein or in the Community Area Restrictions or the By-laws, including the sale of land subject to any assessment lien at public or private sale on such reasonable terms and conditions as the directors of this corporation shall determine, the proceeds of any such sale to b e applied first to the payment of the corporation's costs, including legal expenses, of the sale proceedings, next to the payment of the delinquent amount secured by the lien and the balance, if any, to the owners of the land as their interests may appear.

(i) To sue and be sued in any court.

(j) To make and use a common seal and to alter the same at it pleasure.

(k) To acquire (by gift, purchase, lease or otherwise), own, hold, improve, build upon, operate, maintain, rent, lease, assign, sell, transfer, convey, donate, dedicate for public use or dispose of such property, real, personal and mixed, as the purposes of the corporation shall require or appear to be served, without limit as to amount, and to borrow money, to mortgage, pledge and hypothecate the same to secure any debt of the corporation, subject to the provisions of Article V of the Community Area Restrictions.

(l) To draw, make, accept, endorse, assign discount, execute and issue promissory notes, bills of exchange, bills of lading, drafts, obligations, certificates, stock and other warrants, and other instruments to be assignable, negotiable or transferable by delivery or to order, or otherwise, as the purposes of the corporation shall require.

(m) To enter into and perform contracts, undertakings and obligations of every kind and character consonant with the purposes of the corporations and subject to the limitations hereinabove set forth.

(n) To appoint such subordinate officers and agents as the activities of the corporation may require.

(o) To make By-Laws not inconsistent or in conflict with the law, the Community Area Restrictions or these Articles.

(p) To adopt rules and regulations call "Association Rules" not inconsistent with and subject to the Community Area Restrictions, governing and regulating certain activities within the Community Area, all of the mutual benefits and welfare of the members of the corporation.

(q) And generally to possess and exercise any and all rights, privileges, powers and immunities which are accorded to the corporation under the Community Area Restrictions or which are now or may hereafter be secured by law to nonprofit corporations and which are reasonably incidental to the fulfillment of the objects and purposes hereinabove set forth and to the exercise of any powers possessed by or granted to this corporation.

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(a) Each and every person, corporation, partnership or other legal entity being an "Owner" as hereinafter described shall be a member of the Association.

(b) For the purposes of determining membership status in the Association, the term "Owner" shall be deemed to include:

(1) An owner of any "lot" or "unit" within a residential area of the Community Area as those terms are defined and described in the Community Area Restriction, including any government agency or instrumentality which owns a unit; provided that except for the Declarant hereinafter mentioned, an owner of residential area land not subdivided into lots shall not be deemed an "Owner" for the purposes of determining membership in the Association until the land or a portion thereof has be subdivided into lots, or if the land is being developed as a condominium project, until at least one condominium unit thereon has been substantially completed and is lawfully fir for occupancy. As such residential area land is subdivided into lots or condominium units are completed thereon, the owner thereof shall be deemed an "Owner" for the purposes of determining membership in the Association as to each lot created or unit completed.

(2) With regard to a condominium unit within the Community Area, an "apartment owner" as that term is defined in the Condominium Law of the State of Hawaii (Hawaii Revised Statutes [1985], Chapter 514A, or the law of the State of Hawaii thereunto succeeding) but only from and after such time as the condominium unit has been completed and is lawfully fit for occupancy;

(3) An owner of any parcel of land within a commercial area of the Community Area;

(4) An owner of any parcel of land within a Private Recreational Area of the Community Area;

(5) An owner of any parcel of land within the Community Area which is a private eleemosynary, religious, educational, community of civic institution or organization; and

(6) The Declarant as named in the Community Area Restriction (or any successor of the Declarant), so long as the Declarant (or its successor) is the owner of any unit or land, whether or not subdivided into lots, within the Community Area.

(c) No membership shall be terminated or forfeited, and no member shall be expelled, except upon transfer of his interest in the Community Area which entitles him to membership; provided, however, that upon execution, delivery and recordation or filing of a valid agreement of sale of such interest which therein, the vendor's membership, including voting rights incident thereto, shall be considered as having been temporarily transferred to the vendee, such transfer becoming permanent upon subsequent delivery of a deed or assignment of lease in compliance with said agreement of sale or revesting in the vendor in the event of termination of said agreement of sale. No member may withdraw, nor shall any member transfer or otherwise dispose of his membership, except upon lawful conveyance, assignment or transfer (or agreement of sale) of his rights and duties as such Owner.

(d) The membership of the Association shall be divided into four (4) classes of membership as follows:

(1) Class A members shall include all owners described in subparagraphs (b)(1) and (b)(2) above, including any "Subdeveloper", as that term is defined and described in the Community Area Restrictions, from and after such time as the land owned by any such Subdeveloper has been subdivided into lots, or if the land is being developed as a condominium project, from and after such time as at least one condominium unit thereon has been completed and is lawfully fit from occupancy.

(2) The Class b member shall be the Declarant;

(3) Class C members shall include all owners described in subparagraphs (b)(3) and (b)(5) above; and

(4) Class D members shall include all owners described in paragraph (b)(4) above other than the Declarant.

(e) The membership status, rights, duties, privileges and obligations of an Owner as a member of the Association shall be exclusively as set forth in the Community Area Restrictions, these Articles and the By-laws of the Association.

(f) The right of any member to vote on matters concerning the corporation may be suspended for a period not exceeding sixty (60) days be action of the Board of Directors of the Association during the period when the member shall be in default in the payment of any assessment or charge levied by the corporation; but, upon payment of such assessments, his rights and privileges shall be automatically restored. If the Board of Directors has adopted and published rules and regulations governing the use of the common areas, improvements and facilities, and the personal conduct of any person thereon, as provided in paragraphs (d) and (e) of Article IV, they may, in their discretion, suspend the right to vote of any such person for violation of such rules and regulations until such time as the person has complied with such rules and regulations. Suspension of a member's right to vote shall not be deemed to prevent or interfere with the right of an Owner to use his lot or unit.

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Member of the Association shall be entitled to vote as follows:

(a) Each Class A member shall be entitled to one (1) vote for each lot or unit owned, provided that if more than one person or entity owns a particular lot or unit, any one of said persons or entities may exercise the one vote attributable to the ownership of said lot or unit unless a co-Owner objects, in which case the exercise of the one vote by any co-Owner shall require the unanimous written consent of all co-Owners.

(b) The Class B member (Declarant) shall be entitled to three (3) votes for each lot or unity owned by it or a "Controlled Entity", as that term is defined and described in the Community Area Restrictions, and three-quarters of one (0.75) vote for each on thousand (1,000) square feet, rounded to the nearest thousand, of land in the Community Area owned by it or a Controlled Entity (not including private recreational area land) which has not yet been subdivided into lots; provided, however, that at such time as seventy-five percent (75%) of the total land area in the Community Area, not including land classified as private recreational area land, has been developed and the lots, units or sites developed thereon have been conveyed to individual Owners other than the Declarant, or a Controlled Entity or a Subdeveloper, the votes exercisable by the Declarant shall be reduced to one 91) vote for each lot or unit owned by it or a Controlled Entity and one-fourth of one (0.25) vote for each one thousand (1,000) square feet of land owned by it or a Controlled Entity (not including private recreational land) which has not yet been subdivided into lots. The Declarant shall also be entitled to the number of votes allocated to private recreational area land in the Community Area owned by the Declarant or a Controlled Entity which votes were allocated pursuant to Section 2.04 of the Community Area Restrictions at the time such land was added to the Community Area.

(c) Each Class C member shall be entitled to one-fourth of one (0.25) vote for each one thousand (1,000) square feet of land owned rounded to the nearest thousand.

(d) Each Class D member shall be entitled to the number of votes allocated to the land owned by such member which was allocated by the Declarant pursuant to Section 2.04 of the Community Area Restrictions at the time such land was added to Community Area.

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(a) The officers of the corporation shall be President, on or more Vice Presidents as may be determined in accordance with the By-Laws, a Secretary and a Treasurer. The corporation may have such additional officers as may be determined in accordance with the By-Laws. Any person may hold two offices of said corporation if so provided by the By-Laws.

(b) The Board of Directors of the corporation shall consist of not less than three (3) nor mote than nine (9) persons. The directors (and alternate directors and/or substitute directors, if any) shall be elected or appointed in the manner provide in the By-Laws and may be removed from office in the manner provided in the By-Laws and all vacancies in the office of director or of any officer shall be filled in the manner provided in the By-Laws; provided, however, that the By-Laws shall specify that the regular election of directors and officers and the filling of vacancies in the office of directors or of an officer shall be accomplished during the annual meetings of the corporation to be held on such day and at such time and place specified pursuant to the By-Laws.

The names and addresses of the initial officers and directors of the corporation are as follows (no less than one-third of the directors are residents of the State of Hawaii):

(c) The affairs of the corporation shall be conducted by the Board of Directors and all the powers and authority of the corporation shall be vested in and may be exercised by the Board of Directors except as otherwise provided by law, these Articles of Incorporation, the By-Laws of the corporation or the Community Area Restrictions, to and including full power to make and adopt proper rules and regulations for the conduct of the affairs of the corporation.

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No director or officer of the corporation shall be liable to the corporation for any loss or damage suffered by it on account of any action or omission by him as such director or officer, unless such director or officer shall, with respect to such action or omission, be or have been guilty of willful misconduct in the performance of his duties as such director or officer.

Each person who is now or hereafter shall be a director of officer of the corporation, and his personal representatives, shall be indemnified by the corporation against all costs and expenses reasonably incurred by or imposed upon him in connection with any action, suit, proceeding, investigation or inquiry to which he may be made a party by reason of his being or having been a director or officer of the corporation (whether or not he continues to be a director or officer at the time of the incurring or imposition of such costs and expenses) except in relation to matters as to which he shall be finally adjudged in any action suit or proceeding to be liable for willful misconduct in the performance of his duties as such director or officer. If in any such action, suit or proceeding there is a final adjudication that such director or officer was, or that such director or officer was not guilty of such willful misconduct, the Board of Directors and each director and officer of the corporation may conclusively rely thereon and in the absence of any final adjudication in any such action, suit or proceeding, the Board of Directors and each director and officer of the corporation may conclusively rely upon the opinion of legal counsel selected by or in the manner designated by the Board of Directors.

The immunity from liability and the indemnity provided for in the Article VIII shall be in addition to any rights to which the director or officer of the corporation may be entitled by law, pursuant to vote of the members of the corporation, or otherwise.

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The corporation is organized for charitable and civic purposes only and is not organized for profit, it will not issue any stock, and no part of its assets, income or earnings shall be distributed to its members, directors or officers, except for services actually rendered to the corporation. Any other provision of these Articles to the contrary notwithstanding, the corporation shall not engage in any activities or exercise any powers that are not in furtherance of the purposes of this corporation as set forth in these Articles.

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No voluntary dissolution of the corporation or liquidation of its assets shall take place without the affirmative vote of three-fourths (3/4ths) of the members of the corporation present at a meeting of the member of the corporation duly called and held for the purpose of authorizing such dissolution and/or liquidation. Written notice of the meeting setting forth such purpose shall be given to all members not less than thirty 930) days prior to said meeting. Upon dissolution or liquidation, the assets of the corporation, after payment of the corporation's just debts, shall be dedicated to one or more appropriate public agencies or instrumentalities to be devoted to purposes as nearly as practicable the same as those to which the assets were required to be devoted by the corporation. If such dedication is refused acceptance, such assets shall be granted, conveyed or assigned to any one or more non-profit corporations, associations, trusts or other organizations then qualifying as exempt organizations under Section 501 ©(3) of the Internal Revenue Code of 1954 to be devoted to charitable purposes and uses that would most nearly reflect the purposes and uses to which the assets were required to be devoted by the corporation.

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To the extent permitted by law, the corporation may participate in mergers and consolidations with other non-profit corporations organized for the same purposes, provided that any such merger or consolidation shall have the assent of the members who are entitled to three-fourths (3/4ths) of the total number of votes eligible to be cast by members of the corporation.

The property of the corporation shall alone be liable in law for the payment of its debts and discharge of its obligations. Neither the members of the corporation nor the members of the Board of Directors nor any of the officers shall have any personal liability for the payment of such debts or the discharge of such obligation, except that every member of the corporation shall be subject to assessment for and on account of debts, expenses and obligation of the corporation as herein provided.

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These Articles of Incorporation may be mended from time to time by vote of not less than two-thirds (2/3rds) of the members of the corporation present at a meeting duly called and held for the purpose. No amendment shall be effective unless and until a certificate setting forth the amendments signed and verified by two authorized corporate officers has been filed in the Office of the Director of the Department of Commerce and Consumer Affairs of the State of Hawaii and approved by said Director.

The corporation shall be subject to all general laws now in force or hereafter enacted with regard to nonprofit corporations.

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