Major Decisions any proposed or actual foreclosure upon or comparable conversion of the ownership of the Property or the exercise of any other remedies with respect to the Loan;
Major Decisions. (a) Notwithstanding anything to the contrary set forth herein, without prior written Member Consent in each instance (each, a “Major Decision”), none of the Company, the Managing Member or the Operating Member shall:
(i) adopt, modify or supplement the Plans and Specifications, except to the extent permitted without the Company’s consent under the Development Agreement including, without limitation, Section 2.15 of the Development Agreement;
(ii) enter into any contract or transaction with, or pay any amount to, a Member or any Affiliate of a Member, except for Out-of-Pocket Costs incurred on behalf of the Company or as expressly provided in this Agreement, the Project Budget, an Operating Budget or a Capital Budget;
(iii) authorize or enter into any agreement, transaction or action on behalf of the Company that is unrelated to its purpose set forth in Section 2.3, including acquiring any additional real property;
(iv) subject to the terms of Article 10, sell, lease, encumber, assign, convey, exchange or otherwise dispose of, in each case directly or indirectly, any interest in any asset of the Company, except in the case of (i) the sale of personal property which is not necessary for the operation of the Property (or if necessary, which is replaced by sufficient substitute property) for a sales price of not more than $25,000, or (ii) Permitted Leases;
(v) modify the Project Budget, provided it shall not be a Major Decision to (i) reallocate amounts to the extent permitted under the Development Agreement and under the loan documents relating to the Construction Loan without having to obtain the lender’s consent. Notwithstanding the foregoing, it shall be a Major Decision to reallocate any savings in the Project Budget line item for CNL’s or Bainbridge’s legal and third party costs and expenses, for marketing and initial leasing expenses or for loan interest;
(vi) voluntarily dissolve or liquidate the Company;
(vii) authorize or effect a merger or consolidation of the Company with or into one or more entities;
(viii) make any call for capital contributions from the Members, except as expressly authorized pursuant to Article IV;
(ix) terminate the Property Management Agreement or replace the Property Manager or amend, modify, supplement, assign or grant any material consents or waivers under the Property Management Agreement or any other property management agreement for the Property; provided, however, that if the Property Manager is Bainbridge or an Affili...
Major Decisions. (a) Notwithstanding Section 6.1 or any other provision of this Agreement to the contrary, but in any event subject to the additional restrictions set forth in Article XIV herein, all Major Decisions proposed to be taken by the Company shall require the unanimous approval of the Members, which such approval shall not be unreasonably withheld.
(b) Each of the following is a “Major Decision” for purposes of this Agreement:
(i) extending credit, making loans or becoming or acting as a surety, guarantor, endorser or accommodation endorser or modifying any obligations relating to the foregoing except (x) in connection with negotiating checks or other instruments received by the Company, or (y) the incurrence of accounts receivables or other similar arrangements in the normal course of the Company’s Business;
(ii) except for the Loan, the Basic Documents, or trade payables incurred in the normal course of the Company’s Business, obtaining financing or refinancing for, or otherwise incurring any indebtedness of the Company, any subsidiary or any assets of the Company or any subsidiary; approving or executing the documents evidencing any such financing or refinancing or any amendments or modifications thereof; and/or selecting the lender or lenders providing any such financing or refinancing;
(iii) placing or suffering of any other lien or encumbrance on or affecting the Property or any portion thereof other than in connection with the Loan;
(iv) acquiring any land or other real property or any interest therein other than the Property;
(v) making and/or implementing any decision to form any subsidiary entity (including a corporation, partnership, limited liability company, trust or other entity) and/or to assign, transfer or convey all or any portion of the Property or any other asset or property or the rights to acquire the Property or any other asset or property to any subsidiary entity and the execution and delivery of any documents, agreements or instruments implementing, evidencing or relating to any such decision or action (including any organizational documents relating to any subsidiary entity):
(vi) except as set forth on Schedule 6.2(b)(vi), entering into any agreement or contract for goods, services or property, or any other transaction, with any Member or any Affiliate of any Member or paying any compensation, remuneration or other consideration or any kind to any Member or any Affiliate of any Member, or determining the amount of overhead and other rei...
Major Decisions. None of the following decisions or actions may be taken on behalf of the Corporation without the written approval of Stockholders holding not less than eighty percent (80%) of the issued and outstanding Stock of the Corporation:
(a) any amendment or modification to the Certificate or other similar organizational document of the Corporation (including the By-Laws) which will have a material adverse effect on the rights of any Stockholder whether under this Agreement or otherwise or any change in the rights and priviledges of the Shares;
(b) any action to convert or change the Corporation into a limited liability company or other form of business organization other than a corporation;
(c) selling, leasing, transferring or otherwise disposing of any of assets of the Corporation or any of its Subsidiaries to, or the purchasing by the Corporation or any of its Subsidiaries assets from, or entering into or making any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (each of the foregoing, an "Affiliate Transaction"), unless such Affiliate Transaction is on terms that are no less favorable to the Corporation or the relevant Subsidiary than those that could have been obtained in a comparable transaction by the Corporation or such Subsidiary with an unrelated Person;
(d) any amendment, modification or renegotiation of the Operations and Management Agreement entered into by the Corporation and LEG as of the date hereof;
(e) creating, incurring or assuming any indebtedness for borrowed money in excess of $250,000 in the aggregate, other than the Loans;
(f) any prepayment of the Loans; and
(g) issuing any additional Shares or taking any other similar action which, after giving effect thereto, would have the effect of diluting the percentage interest of the capital stock owned by any Stockholder in the income of, or distributions from, the Corporation, or the voting power, represented by such Shares; provided, however, that if the Board of Directors shall determine that additional capital is needed in connection with the construction or refurbishment of the Facility or in connection with the operation of the Facility then the super-majority approval of the Stockholders required by this Section 3.3 shall not be required in connection with the issuance of any additional Shares or other equity securities of the Corporation made to raise capital for such purpose.
Major Decisions. (A) Subject to Section 7.3(D) with respect to the Company, all major decisions of the Company set forth below in clauses (A)(1) through (A)(5) (“Major Decisions”) shall be subject to the Company’s Articles of Incorporation and joint approval by the Advisor and Sub-advisor. For the avoidance of doubt, Major Decisions specifically exclude any decisions regarding the day-to-day operations of the Company, the decision-making authority for which has been delegated to the Sub-advisor pursuant to this Agreement. Major Decisions shall consist of the following:
(1) Retention of investment banks for the Company;
(2) Marketing methods for the Company’s sale of Shares;
(3) Extending, initiating or terminating the Initial Public Offering or any subsequent Offering of the Shares;
(4) Issuing press releases involving the major decisions of the Company or the Advisor or Sub-advisor or their Affiliates with respect to the business or operations of the Company; provided, that the Sub-advisor need not obtain consent to any press releases regarding acquisitions or dispositions of Properties, Loans or other Permitted Investments; and provided further, however, that notwithstanding the immediately preceding proviso, any mention of the Advisor or its Affiliates in such press releases regarding acquisitions or dispositions shall be pre-approved by the Advisor; and
(5) Merging or otherwise engaging in any change of control transaction for the Company.
(B) Notwithstanding anything in this Agreement to the contrary, if the Parties do not agree to any action constituting a Major Decision and that has been proposed by either Party, the Parties shall meet (in person or by phone) to discuss the issue in dispute in good faith over the five-business day period beginning with the delivery of notice of the proposed action to the other Party. If, after the expiration of the above-referenced five-business day period, the Parties still do not agree as to the proposed course of action regarding such Major Decision, representatives of both the Advisor and the Sub-advisor will be obligated to present each of their respective proposed courses of action regarding such Major Decision to the Board of Directors for review and approval within an additional five-business day period.
(C) Intentionally omitted
(D) Notwithstanding the provisions of this Section 7.3 or any other provision in this Agreement to the contrary, in all events, including Major Decisions, the Company will be managed under the direc...
Major Decisions. The Borrower shall promptly, but in no event later than five (5) Business Days prior to any vote or approval in respect of a Major Decision, deliver, or cause to be delivered, to the Administrative Agent written notice describing the issue to be decided by vote or approved together with copies of all correspondence received and sent with respect to that Major Decision.
Major Decisions. Notwithstanding Sections 7,2 and 7.6, the Managing Member, on behalf of the Company, may not enter into or conduct any of the following transactions (“Major Decisions”) without the majority consent of the Board of Managers:
(a) admit a Person as a Member except as provided in this Agreement;
(b) change the status of the Company from one in which management of the Company is vested in managers to one in which management of the Company is vested in the members and vice versa;
(c) assign the Company’s property in trust for creditors or on the assignee’s promise to pay the Debts of the Company;
(d) select, retain or employ any attorneys or legal advisors to institute or defend any claims, litigation or other legal proceeding brought by or brought on behalf of or against the Company, in which the amount in controversy exceeds $250,000.00;
(e) institute or settle any litigation, arbitration or other legal proceeding by or on behalf of the Company, or confess a judgment against the Company, in which the amount in controversy exceeds $250,000.00, except that the Managing Member, without consent of the Board of Managers, may negotiate and settle disputes on behalf of the Company with the Mine Safety and Health Administration (MSHA), with authority to commit the Company to pay any associated fines, costs or other liabilities in an aggregate amount of $1,000,000.00 in any given Fiscal Year;
(f) sell, convey, lease, assign, exchange or otherwise dispose of any real property or any combination thereof or any other material asset of the Company with a fair market value in excess of $250,000.00 in the aggregate during any Fiscal Year without consent of the Board of Managers, provided, however, that the Managing Member shall have the authority to sell, transfer, dispose, abandon or lease any movable equipment in the ordinary course of business which are no longer necessary or required in the conduct of the Company’s business;
(g) borrow money in the name of the Company in excess of $250,000.00 in the aggregate during any Fiscal Year which is not included within the approved Project Budget for that Fiscal Year or issue evidences of indebtedness of the Company, or refinance, recast, modify or extend the same, or secure the same by mortgage, deed of trust, pledge or other Lien;
(h) commit to make, or make, any expenditure (including Capital Expenditures) in excess of $250,000.00 in the aggregate during any Fiscal Year which is not included within the approved Project Budget ...
Major Decisions. Except as may be specifically contemplated in the Project Agreement and any Material Agreement, notwithstanding any other provision of this Agreement or the Act:
(i) no obligation of the Corporation shall be entered into;
(ii) no decision shall be made; and
(iii) no action taken by or with respect to the Corporation, in connection with the Major Decisions without the written approval of OSEG and the City in accordance with Schedule 3.10 (Major Decisions).
Major Decisions. (a) In addition to any other approval required by Applicable Laws or this Agreement, Major Decisions are reserved to the Members, and none of the Company, the Managing Member, or any officer thereof shall do or take or make or approve any Major Decisions without the vote required pursuant to Section 8.3(b) below.
(b) Other than the Major Decisions referred to in clause (bb) of the definition of the term “Major Decisions” which shall require the approval of all Members, in the Pre-Flip Period the affirmative vote, consent or approval of a majority of the holders of the Class A Membership Interests and a majority of the holders of the Class B Membership Interests shall be required to authorize or approve a Major Decision, and, after the Flip Date, consent or approval of holders of a majority of the voting rights related to all outstanding Membership Interests shall be required to authorize or approve such Major Decision (the percentage applicable at the time a Major Decision will be made is referred to herein as a “Required Majority Vote”). Except as otherwise expressly provided in this Agreement, no separate vote, consent or approval of either Class A Member, acting as a class, or Class B Members, acting as a class, shall be required to authorize or approve any matter for which a vote, consent or approval of Members is required under this Agreement.
(c) The decision of each Member as to whether or not to consent to any Major Decision shall be in the sole discretion of such Member. A request for consent shall be sent by the Managing Member to each Member as provided in Section 11.1.
(d) Notwithstanding anything to the contrary in this Agreement, if and to the extent the Managing Member fails to enforce the rights of the Company under any agreement between the Company, on the one hand, and MSA Provider, Developer, Sponsor, Managing Member, or any of their Affiliates (the “Sponsor Related Parties”), on the other hand, each Class A Member shall have the right to enforce such rights (but only such rights) on behalf and in the name of the Company, if the Managing Member has not commenced and thereafter continued proper enforcement actions within fifteen (15) Business Days (or earlier to the extent required to preserve the rights and remedies of the Company under any such agreement) after written notice from a Class A Member specifying such failure.
Major Decisions. Managing Member shall fully consult with the Members at all times to the extent reasonably practicable, and each of the following matters ("Major Decisions") must be previously approved in writing by the Members, however, such approval shall not be unreasonably withheld:
(1) The adoption of, and any material supplement to, revision of, or deviation from the Business Plan.
(2) Without limitation on Subsection B(1) above, the adoption of, and any material supplement to, revision of, or deviation from any of the Budgets (subject to Subsection (3) below). Managing Member agrees to submit to the members, at least thirty (30) days prior to each calendar year during the term hereof, the proposed Operating Budget and Capital Budget for such calendar year, which shall be in the same form as the forms of the initial Operating Budget and Capital Budget attached as Exhibit "A" to the Management Agreement, and which proposed Operating Budget and Capital Budget shall be subject to the prior written approval of the Members, which shall not be unreasonably withheld. If the Operating Budget or Capital Budget is not approved in writing by the Members for any particular year, then until such Budgets are approved in writing by the Members, Managing Member shall obtain the Members' prior written approval of all capital expenditures (other than capital expenditures in accordance with the prior year's Budgets which were not expended in the prior year but which are required to be expended by the Company pursuant to authorized Company contracts), and Managing Member shall to the extent practicable operate within the prior year's approved Operating Budget.
(3) Any deviation from or expenditure inconsistent with any of the Budgets (or the entry into any agreement therefor). Notwithstanding the foregoing, the Members' consent to an expenditure payable to a third party exceeding the amount specified for such expenditure in any applicable Development Plan, Operating Budget and Capital Budget shall not be required in any of the following circumstances: (a) Managing Member, in his reasonable judgment, deems these to be an emergency requiring such expenditures to effectuate immediate action necessary for the protection of the Company Property or persons; (b) such expenditure would not cause the aggregate amount of the expenses (excluding the expenses described in Clause (c) below) within the applicable Budget to exceed one hundred fifteen percent (115%) of the entire amount of budgeted ex...
