Board of Managers Approval. Not▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇thing contained in this Agreement to the contrary (including, without limitation, in Section 3.3), the management of the Company with respect to certain decisions of the Company shall lie with the Board of Managers as provided in this Agreement. The Board of Managers shall consist of seven (7) members, provided that the number of members of the Board of Managers may be increased or adjusted from time to time by the affirmative vote of a majority of the members of the Board of Managers holding at least a majority of the Voting Power. Of the seven (7) members of the Board of Managers, three (3) shall be appointed by the holders of the Class A Common Units (the "Class A Common Designees") of GAR, LLC, a Mississippi limited liability company and sole voting member of the Company ("GAR"), and four (4) shall be appointed by the holders of the Class B Common Units of GAR, three of whom shall be designated the "Class B Common Designees" and one of whom shall be designated the "Executive Manager"). For purposes of voting and taking any action by the Board of Managers, the Executive Manager and each Class A Common Designee shall be entitled to one (1) vote, and each Class B Common Designee shall be entitled to two (2) votes. Each member of the Board of Managers shall serve until his or her successor is designated by the respective Member(s) of GAR that holds the power of appointment pursuant to this Section 3.4. The Company will reimburse members of the Board of Managers for reasonable costs and expenses incurred in attending Board of Managers meetings. On and after the date hereof, the Board of Managers shall determine the timing and contents of any announcements and disclosures regarding the subject matter hereof. If any member of the Board of Managers shall for any reason fail to be licensed as required by the Mississippi Gaming Commission, such member shall immediately (after expiration of any period in which to appeal such decision before the Mississippi Gaming Commission) resign or be removed from the Board of Managers, and such member shall not be entitled to receive or be paid any amount or payment generated from the Project, and the holders of the Class A Common Units of GAR or the Class B Common Units of GAR, as applicable, shall promptly designate a replacement member to the Board of Managers. Notwithstanding anything contained in this Agreement to the contrary (but subject to Section 3.10 hereof), the Manager may not take any of the following actions on behalf of the Company without obtaining the prior written approval of the proportion of Board of Managers members required by Section 4.7 hereof, any other applicable provision of this Agreement, or the nonwaivable provisions of the Act: Actions Requiring Board of Managers Approval in the Manner Required by Section 4.7: subject to Section 3.11 (whereby the owners of the Class B Common Units are permitted to take certain actions without the consent, vote or approval of either the owners of the Class A Common Units or the members of the Board of Managers designated by the owners of the Class A Common Units, including, without limitation, the items identified in subsections (b), (c), (f), and (p) immediately below), (a) admit Assignees as Substitute Members in accordance with Section 12.2 hereof; (b) admit Additional Members in accordance with Section 12.3 hereof; (c) dispose of all or substantially all of the Company Property; (d) merge or consolidate the Company with and into one or more limited liability companies or other entities; (e) authorize the dissolution of the Company in accordance with Section 13.4 through Section 13.4 hereof; (f) sell, lease or contract to sell (including the method of sale or form of lease) or otherwise dispose of all of any Project, or selling, leasing or contracting to sell or lease any Project or part thereof for a sales price other than that specified in any price schedule; (g) approval of any schedule specifying the sales price of any Project or part thereof; (h) alter or amending the distribution provisions provided for in this Agreement, or approving any distributions to any Member that are not otherwise provided for in this Agreement; (i) approval of the terms of the Development Loan, the Mezzanine Loan, or other credit accommodation to the Company; (j) apply for a gaming license or other regulatory approvals necessary or convenient for the development and operation of a gaming Project; (k) cause or permit the Project to be subjected to any mortgage, deed of trust or other security interest and refinancing any such indebtedness other than in connection with the Development Loan; (l) borrow on an unsecured basis; (m) enter into agreements with Affiliates; (n) address material tax matters; (o) acquire additional Property or make capital expenditures, either of which exceeds $5 Million; (p) raise additional equity capital in addition to or in lieu of the Development Loan; and (q) require additional capital contributions of the Members or approve the voluntary contribution of additional capital by any Member. Notwithstanding anything contained in this Agreement to the contrary (but subject to Section 3.10 hereof), the following actions require the approval of a Super Majority of the Board, with the advice of the General Manager/Operator; provided, however, in the event of a deadlock vote of the Board of Managers for such issues, the deciding vote on such issues shall be decided by the owners of the Class B Common Units until the Repayment Event: (r) develop and approve the annual capital and operating budget(s) for the Company; and for the development of and/or operation of any Project; (s) approve plans for the development of and operation of any Project, including without limitation any decisions regarding impacting the development and the day-to-day operations of the Company's proposed gaming/hotel Project; and (t) employ, compensate from Company funds, and terminate, if necessary in the discretion of Board of Managers the (i) the Project Manager to oversee the construction and development of the Project; (ii) and other senior managers of the Company, including without limitation, the Executive Chef, the Food and Beverage Manager, the Hotel Manager, the Casino Manager, the Credit Manager, the Chief Financial Operator, the Chief Engineer, and the Spa Manager; provided, however, whether or not any portion of the Preference Amount remains unpaid, any termination of Joseph Billhimer as the President and Chief Operating Officer of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇quire the approval of a Super Majority of the Board.
Appears in 1 contract
Sources: Limited Liability Company Operating Agreement (Premier Finance Biloxi Corp)
Board of Managers Approval. Not▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇thing Notwithstanding anything contained in this Agreement to the contrary (including, without limitation, in Section SECTION 3.3), the management of the Company with respect to certain decisions of the Company shall lie with the Board of Managers as provided in this Agreement. The Prior to the Repayment Event, the Board of Managers shall consist of seven six (76) committee members, provided that the number of members of the Board of Managers may be increased or adjusted from time to time by the affirmative vote of a majority or action of the members Super Majority of the Board (and the prior written approval of Managers holding at least a majority of the Voting PowerAA Capital). Of the seven six (76) members of the Board of Managers, three (3) shall be appointed by the holders owners of the Class A Common Units and three (the "Class A Common Designees") of GAR, LLC, a Mississippi limited liability company and sole voting member of the Company ("GAR"), and four (43) shall be appointed by the holders owners of the Class B Common Units of GAR, three of whom shall be designated the "Class B Common Designees" and one of whom shall be designated the "Executive Manager")Units. For purposes of voting and taking any action by the Board of Managers, each member of the Executive Manager and each Class A Common Designee Board of Managers shall be entitled to one (1) vote, and each Class B Common Designee shall be entitled to two (2) votes. Each member of the Board of Managers shall serve until his or her successor is designated by the respective Member(s) of GAR that holds the power of appointment pursuant to this Section SECTION 3.4. Notwithstanding the foregoing, if either (a) an event of default shall occur under either or both of the Development Loan or the Mezzanine Loan or the Loan Documents (whether or not such event of default is formally declared or called by the applicable lender, creditor, noteholder(s) or trustee thereunder or involved therewith), or (b) the aggregate dollar value of the total investment in the Company by the owners of the Class B Common Units and the Class A Preferred Units, PLUS the accrued but unpaid Initial 12% Interest Rate Amount PLUS the accrued but unpaid Subsequent 17% Interest Rate Amount ("INVESTMENT VALUE"), at any time equals more than Eighty Million Dollars ($80,000,000), then the three (3) members of the Board of Managers appointed by the owners of the Class B Common Units shall each be entitled to and shall have two (2) votes for purposes of voting, making decisions, and taking any and all action or actions by the Board of Managers, until such time as such event of default is cured or the Investment Value is less than Fifty Million Dollars ($50,000,000) (the "SUPER MAJORITY VOTE"). The Company will reimburse members of the Board of Managers for reasonable costs and expenses incurred in attending Board of Managers meetings. On and after the date hereof, the Board of Managers shall determine the timing and contents of any announcements and disclosures regarding the subject matter hereof, and any such announcement and disclosure shall require the prior consent of the owners of the Class B Common Units, which consent shall not unreasonably be withheld. If any member of the Board of Managers designated by the owners of the Class A Common Units or the Class B Common Units, respectively, shall for any reason fail to be licensed as required by the Mississippi Gaming Commission, such member shall immediately (after expiration of any period in which to appeal such decision before the Mississippi Gaming Commission) resign or be removed from the Board of Managers, and such member shall not be entitled to receive or be paid any amount or payment generated from the Project, and the holders owners of the Class A Common Units of GAR or the Class B Common Units of GARUnits, as applicable, shall promptly designate a replacement member to the Board of Managers. Notwithstanding anything contained in this Agreement to the contrary (but subject to Section SECTION 3.10 hereof), the Manager may not take any of the following actions on behalf of the Company without obtaining the prior written approval of the proportion of Board of Managers members required by Section SECTION 4.7 hereof, any other applicable provision of this Agreement, or the nonwaivable provisions of the Act: Actions Requiring Board of Managers Approval in the Manner Required by Section ACTIONS REQUIRING BOARD OF MANAGERS APPROVAL IN THE MANNER REQUIRED BY SECTION 4.7: subject to Section 3.11 (whereby the owners of the Class B Common Units are permitted to take certain actions without the consent, vote or approval of either the owners of the Class A Common Units or the members of the Board of Managers designated by the owners of the Class A Common Units, including, without limitation, the items identified in subsections (b), (c), (f), and (p) immediately below),
(a) admit Assignees as Substitute Members in accordance with Section SECTION 12.2 hereof;
(b) admit Additional Members in accordance with Section SECTION 12.3 hereof;
(c) dispose of all or substantially all of the Company Property;
(d) merge or consolidate the Company with and into one or more limited liability companies or other entities;
(e) authorize the dissolution of the Company in accordance with Section SECTIONS 13.4 through Section 13.4 13.8 hereof;
(f) sell, lease or contract to sell (including the method of sale or form of lease) or otherwise dispose of all of any Project, or selling, leasing or contracting to sell or lease any Project or part thereof for a sales price other than that specified in any price schedule;
(g) approval of any schedule specifying the sales price of any Project or part thereof;
(h) alter or amending the distribution provisions provided for in this Agreement, or approving any distributions to any Member that are not otherwise provided for in this Agreement;
(i) approval of the terms of the Development Loan, the Mezzanine Loan, or other credit accommodation to the Company;
(j) apply for a gaming license or other regulatory approvals necessary or convenient for the development and operation of a gaming Project;
(k) cause or permit the Project to be subjected to any mortgage, deed of trust or other security interest and refinancing any such indebtedness other than in connection with the Development Loan;
(l) borrow on an unsecured basis;
(m) enter into agreements with Affiliates;
(n) address material tax matters;
(o) acquire additional Property or make capital expenditures, either of which exceeds $5 Million;
(p) raise additional equity capital in addition to or in lieu of the Development Loan; and
(q) require additional capital contributions of the Members or approve the voluntary contribution of additional capital by any Member. Notwithstanding anything contained in this Agreement to the contrary (but subject to Section SECTION 3.10 hereof), the following actions require the approval of a Super Majority of the Board, with the advice of the General Manager/Operator; providedPROVIDED, howeverHOWEVER, in the event of a deadlock vote of the Board of Managers for such issues, the deciding vote on such issues shall be decided by the owners of the Class B Common Units until the Repayment Event:
(ra) develop and approve the annual capital and operating budget(s) for the Company; and for the development of and/or operation of any Project;
(sb) approve plans for the development of and operation of any Project, including without limitation any decisions regarding impacting the development and the day-to-day operations of the Company's proposed gaming/hotel Project; and
(tc) employ, compensate from Company funds, and terminate, if necessary in the discretion of Board of Managers the (i) the Project Manager to oversee the construction and development of the Project; (ii) and other senior managers of the Company, including without limitation, the Executive Chef, the Food and Beverage Manager, the Hotel Manager, the Casino Manager, the Credit Manager, the Chief Financial Operator, the Chief Engineer, and the Spa Manager; providedPROVIDED, howeverHOWEVER, whether or not any portion of the Preference Amount remains unpaid, any termination of Joseph Billhimer as the President and Chief Operating Officer of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇quire ▇▇▇ as the President and Chief Operating Officer of the Company shall require the approval of a Super Majority of the Board.
Appears in 1 contract