Common use of ACTIONS REQUIRING CONSENT OF ALL MEMBERS Clause in Contracts

ACTIONS REQUIRING CONSENT OF ALL MEMBERS. Notwithstanding the foregoing provisions of Section 4.1, unless the action is provided for in the Operating Budget, is otherwise expressly permitted pursuant to the terms of this Agreement (including Section 4.11) or the Manager has obtained the written consent of all of the Members, the Manager shall not cause the Company to do, nor shall the Manager have the power or authority to cause or permit the Company to do, any of the following: (a) to purchase or acquire, or contract or commit to purchase or acquire, any property or asset; (b) except in accordance with the provisions of Section 9.3, 9.4 or 9.5, to Dispose of all or any portion of, or any estate or interest in, the Properties (other than leasehold interests to third parties granted in the ordinary course of business) or assets of the Company, including its goodwill; (c) to enter into any contract; provided, however, that the Manager shall have the authority to enter into the Property Management Agreement without obtaining the written consent of the Members; (d) to borrow any money or enter into any financing, refinancing or loan transaction, including the Secured Indebtedness, or grant a security interest in all or any portion of the Properties or amend the terms and conditions of any existing financing or make elections with respect to interest periods, interest rates, prepayment or other material provisions under any financing; (e) to lease any Property of the Company, except to third parties in the ordinary course of the Company's business or in accordance with the Property Management Agreement or the Franchise Leases; (f) to enter into, or amend, any contract between the Company and a Member or an Affiliate of a Member; (g) to hire any employee for the Company; (h) to enter into any agreement restricting the Company or any Member or Affiliate from competing with the business of any Person in any manner; (i) to enter into any agreement for, or to consummate, any merger, consolidation, recapitalization, reorganization, reconstitution or any similar rearrangement of the Company or any of its equity, assets or liabilities; (j) to admit any Person to the Company as an additional or substitute Member; (k) to commit the Company to an assignment for the benefit of creditors, commence (as the debtor) a case in bankruptcy, or commence (as the debtor) any proceeding under any other insolvency law, or consent to or acquiesce in the commencement of any such proceeding against the Company, or admit or confess the insolvency or bankruptcy of the Company; (l) to settle any uninsured legal, arbitration or administrative claim or proceeding asserted or brought against the Company, or confess a judgment against the Company, at a cost to the Company in excess of the lesser of $100,000 or the amount therefor expressly provided in the Operating Budget as a separate line item specifically identifying the particular claim or proceeding; (m) to dissolve or wind up the Company or cause or permit the termination of its existence; (n) to change the name of the Company; (o) to commit the Company to any capital or operating expenditures in excess of the Operating Budget except as otherwise specified in Section 4.11; (p) seek or consent to any material change in the zoning or other land use regulations affecting any Properties or any permits or approvals granted thereunder; (q) rebuild or reconstruct the improvements on any Properties if they are substantially damaged by a fire or other casualty; (r) file or defend lawsuits or other proceedings, except for (1) actions to recover rents (including the imposition and execution of liens on tenants' property), (2) actions to recover possession of the Properties and claims of tenants in the ordinary course of business, (3) the defense by insurers of insured claims or (4) other actions in the ordinary course of business of operating an individual Property; provided, however, that with respect to any such lawsuit or proceeding involving a claim or series of related claims against the Company totaling more than $250,000, the Manager shall give the Members prompt notice of such lawsuit or proceeding and all Members shall have the opportunity to consult with the Manager regarding the Company's defense of the action; (s) change the Company's accounting methods, either for financial or tax reporting purposes; or (t) to do any act in contravention of this Agreement.

ACTIONS REQUIRING CONSENT OF ALL MEMBERS. Notwithstanding anything to the foregoing provisions of Section 4.1contrary contained in this Article 4 or elsewhere in this Agreement, unless the action is provided for in the Operating Budget, is otherwise expressly permitted pursuant to the terms of this Agreement (including Section 4.11) Plan or Operating Budget or the Manager has obtained the written consent of all of the Members, Members the Manager shall not cause the Company to do, nor shall the Manager have the power or authority to cause or permit the Company to do, any of the following:: 24 (a) to purchase or acquire, or contract or commit to purchase or acquire, any property or asset for a price exceeding $10,000 on any single property or asset; provided that such expenditures shall not exceed $25,000 in the aggregate per Property for any fiscal year; (b) except in accordance with the provisions of Section 9.3, 9.4 or 9.5, to Dispose of all or any portion of, or any estate or interest in, the Properties (other than leasehold interests to third parties granted in the ordinary course of business) or assets of the Company, including its goodwill; (c) to enter into any contract under which, or as a result of which, the Company could be or become obligated or liable in an amount exceeding $10,000 with respect to any single contract; provided, however, provided that any such obligations or liabilities shall not exceed $25,000 in the Manager shall have the authority to enter into the aggregate per Property Management Agreement without obtaining the written consent of the Membersfor any fiscal year; (d) to borrow any money or enter into any financing, refinancing or loan transaction, including the Secured Indebtedness, transaction or grant a security interest in all or any portion of the Properties or amend the terms and conditions of any existing financing or make elections with respect to interest periods, interest rates, prepayment or other material provisions under any financingProperties; (e) to lease any Property of the Company, except to third parties in the ordinary course of the Company's business or and in accordance with the Property Management Agreement or the Franchise LeasesAgreement; (f) to enter into, or amend, any contract between the Company and a Member or an Affiliate of a Member; (g) to hire any employee for the Company; (h) to enter into any agreement restricting the Company or any Member or Affiliate from competing with the business of any Person in any manner; (i) to enter into any agreement for, or to consummate, any merger, consolidation, recapitalization, reorganization, reconstitution or any similar rearrangement of the Company or any of its equity, assets or liabilities; (j) to admit any Person to the Company as an additional or substitute Member; (k) to commit the Company to an assignment for the benefit of creditors, commence (as the debtor) a case in bankruptcy, or commence (as the debtor) any proceeding under any other insolvency law, or consent to or acquiesce in the commencement of any such proceeding against the Company, or admit or confess the insolvency or bankruptcy of the Company; (l) to settle any uninsured legal, arbitration or administrative claim or proceeding asserted or brought against the Company, or confess a judgment judgement against the Company, at a cost to the Company in excess of the lesser of $100,000 500,000.00 or the amount therefor expressly provided in the Operating Budget as a separate line item specifically identifying the particular claim or proceeding; (m) to institute or prosecute any legal, arbitration or administrative action, claim or proceeding on behalf of the Company in an amount in excess of $500,000.00; (n) to dissolve or wind up the Company or cause or permit the termination of its existence;; 25 (no) to change the name of the Company; (op) to commit the Company to any capital or operating expenditures in excess of the Operating Plan or Operating Budget except as otherwise specified in Section 4.11; (p) seek or consent to any material change in the zoning or other land use regulations affecting any Properties or any permits or approvals granted thereunder; (q) rebuild or reconstruct the improvements on any Properties if they are substantially damaged by a fire or other casualty; (r) file or defend lawsuits or other proceedings, except for (1) actions to recover rents (including the imposition Sections 4.3 and execution of liens on tenants' property), (2) actions to recover possession of the Properties and claims of tenants in the ordinary course of business, (3) the defense by insurers of insured claims or (4) other actions in the ordinary course of business of operating an individual Property; provided, however, that with respect to any such lawsuit or proceeding involving a claim or series of related claims against the Company totaling more than $250,000, the Manager shall give the Members prompt notice of such lawsuit or proceeding and all Members shall have the opportunity to consult with the Manager regarding the Company's defense of the action; (s) change the Company's accounting methods, either for financial or tax reporting purposes4.4; or (tq) to do any act in contravention of this Agreement.