Major Decisions Clause Samples
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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. (a) Notwithstanding anything to the contrary, without prior written Member Consent in each instance (each, a “Major Decision”), the Company and Managing Member shall not, and the Managing Member shall not authorize the Operating Member to:
(i) Adopt, modify or supplement the Plans and Specifications, except for Minor Field Changes as permitted under 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, other than to reallocate demonstrated line item savings to demonstrated line item overruns, so long as each Member shall be given notice thereof promptly following such reallocation or allocation of amounts from the contingency line item. Notwithstanding the foregoing, it shall be a Major Decision to reallocate any savings in the Project Budget line item for Crescent’s legal and third party costs and 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) Select any Property Manager to propose to the CNL Property Manager for a sub property management agreement for the management of the Property, it being acknowledged that the Company shall enter into a property management agreement with the REIT Property Manager which has entered into a sub property management agreement with the CNL Property Manager, as set forth in Section 6.9;
(x) Except for the Construction Loan, cause the Company to incur a...
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. The Company and its subsidiaries shall not, and the Managing Member shall cause the Company and its subsidiaries not to, take any action under this Section 6.03 (collectively, the “Major Decisions”) without:
(a) with respect to the following actions, having first obtained the written consent of the holders of a majority of the issued and outstanding Class B Units (in their sole discretion):
(i) amend or waive any provisions of the Delaware Certificate, this Agreement, or the organizational documents of any subsidiary of the Company in a manner that adversely affects the Class B Members’ interest in the Company or indirect interest in any subsidiary of the Company;
(ii) alter or change the rights, preference, or privileges of the Class A Units or Class B Units in a manner that adversely affects the Class B Members’ rights in the Class B Units;
(iii) increase or decrease the authorized number of Class A Units or Class B Units;
(iv) provide for the payment of any dividend or distribution on, or the redemption or repurchase of, any equity security of the Company that is junior to the Class A Units and Class B Units unless there are no accrued or unpaid dividends on the Class A Units and Class B Units;
(v) except (A) loans in aggregate amount outstanding at any one time of not more than $60 million pursuant to Section 4.05(a), and (B) loans in aggregate amount of not more than $140 million (plus the amount of any reasonable and documented out-of-pocket costs, fees, or expenses of the Company or its subsidiaries incurred in connection therewith) pursuant to Section 4.05(b), incur Indebtedness, including the refinancing of existing Indebtedness;
(vi) issue any new or additional Class A Units, Class B Units, or other equity interests of the Company or any of its subsidiaries;
(vii) dissolve, liquidate, or terminate the business of the Company or any of its subsidiaries, or take any voluntary action to become Bankrupt (including any actions under Article 12 hereof) or agree to become Bankrupt;
(viii) purchase, rent, license, exchange, or otherwise acquire any material assets, including any tax equity interests in any project operated by a subsidiary of the Company, except to the extent permitted under Section 4.05(b) (it being agreed that the consent of the holders of the Class B Units shall not be required under this Section 6.03(a)(viii) with respect to any purchases or acquisitions in the ordinary course of business of spare parts or similar assets necessary to ...
Major Decisions any proposed or actual foreclosure upon or comparable conversion (which may include acquisitions of the REO Property) of the ownership of the Property or the exercise of any other remedies with respect to the Loan;
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. (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, (i) 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, (ii) after the Flip Date and until the Post-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 and (iii) after the Post-Flip Date, consent or approval of holders of a majority of the voting rights related to all outstanding Membership Interests based on Sharing Percentages 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. *** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission.
(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 Managin...
Major Decisions. No acts shall be taken, funds expended, decisions made or obligations incurred by the Company, the officers, the Board of Directors, or Stockholder with respect to a matter within the scope of any of the major decisions enumerated below (the "Major Decisions"), unless and until the same has been approved by Supermajority in interest.
a. The Major Decisions shall include:
(1) Acquire or develop any new business or line of business;
(2) Borrow any money from a Stockholder or accept or require capital contributions from any Stockholder, other than loans or capital contributions permitted or contemplated pursuant to Section 2, above;
(3) Make any acquisition of or material investment in any Other Entity (defined herein as any general partnership, limited partnership, corporation, joint venture, trust, business trust, governmental agency, cooperative, association, individual, business or other entity);
(4) Make any material and substantial change in the purposes of the Company or of its business;
(5) Make a determination to surrender any permits, approvals or licenses of the Company or to dissolve the Company;
(6) Sell, transfer, convey, exchange, lease, encumber, pledge, or otherwise dispose of all or substantially all, or the assets of the Company;
(7) Merge, consolidate or combine the Company into or with any Other Entity;
(8) Guarantee by the Company of, or the agreement of the Company to be responsible for, the indebtedness or obligations of any Other Entity;
(9) Make an expenditure or incur any obligation by or on behalf of the Company at any one time involving a sum in excess of Twenty-five Thousand and 00/100 U.S. Dollars (U.S. $25,000.00), including by any lease or installment contract where the total amount of all future payments exceeds Twenty-five Thousand and 00/100 U.S. Dollars (U.S. $25,000.00), except for expenditures made and obligations incurred pursuant to and specifically set forth in a budget previously approved by the Supermajority in Interest;
(10) Institute any legal action or proceeding, except as provided in Section 6.5, below;
(11) Approve all other dividends to the Stockholders, above;
(12) Accelerate payment of any Company debt;
(13) Authorize any new borrowing by the Company with the exception of trade payables incurred in the normal course of the Company business;
(14) Any amendment of the Company's charter;
(15) Increase the number of members of the Board of Directors;
(16) Bankrupt the Company;
(17) Compensation, benefits and em...
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. Notwithstanding the provisions of Section 7.1 and Section 7.2, and except as otherwise expressly provided in this Agreement, without the prior written consent of all of the Members in each instance (a “Major Decision”), the Company shall not, and JMIR Manager as Manager, shall not:
(a) adopt any Annual Budget or make any amendments or modifications thereto (as contemplated by and as further described in Section 7.5) or adopt any supplemental budget, operating plan or other proposal relating to any development and/or renovation of any portion of the Property or any Company Asset and any amendment or modifications thereto; or make or incur any expenditure which is not included or contemplated in an Annual Budget (other than Necessary Expenses or as provided in Section 7.2(b)) or if included or contemplated in an Annual Hotel Operations Budget, such expenditure, individually or in the aggregate during the applicable Fiscal Year, exceeds $10,000 or 10%, whichever is greater, of the aggregate Annual Hotel Operations Budget; or if included or contemplated in an Annual Company Budget, such expenditure exceeds the amount set forth in the applicable line item of such Annual Company Budget by more than the greater of $10,000 and 10% of the line item, or 5% of the total Annual Budget, whichever is less);
(b) enter into any Financing or any amendment, renewal, extension or refinancing thereof; provided that no guaranties or credit enhancements can be required from any Member or its Affiliates without such party’s consent;
(c) sell or otherwise Transfer any material portion of the Company Assets (other than tangible personal property that may be disposed of or replaced due to wear and tear or obsolescence or otherwise in the ordinary course of business);
(d) enter into or renew any material lease, materially modify or terminate the same or waive any material monetary default thereunder;
(e) designate, terminate or replace the Hotel Operator (provided that pursuant to the Hotel Management Agreement, the Manager may delegate to the Hotel Operator any decisions otherwise permitted to be made by the Manager under this Agreement, and any such decisions so delegated shall not be Major Decisions hereunder);