Limitations on Free Transferability. Any Transfer by any Member under Section shall be subject to the following limitations: (a) No Member shall Transfer any beneficial interest in the Company except in conjunction with the Transfer of part or all of its Ownership Interest and in an amount or percentage equal to such transferred Ownership Interest. (b) No transferee of all or any part of a Member’s Ownership Interest shall have the rights of a Member unless and until the transferring Member has provided to the other Members notice of the Transfer, and, except as provided in Subsections and , the transferee, as of the effective date of the Transfer, has committed in writing to assume and be bound by this Agreement to the same extent as the transferring Member. (c) No Member shall make a Transfer that shall violate any Law, or result in the cancellation of any Permits, licenses or other similar authorization, unless the effect of such Transfer shall have been made known to the other Members and the other Members shall have consented thereto. Without limiting the generality of the foregoing, no Member shall effect any Transfer that shall require approval by any Governmental Authority unless such approval shall have been obtained at such transferring Member’s sole cost and expense. (d) No Transfer permitted by this Article shall relieve the transferring Member of any liability of such transferring Member under this Agreement to the extent arising from and relating to periods before such Transfer. (e) Any Member that makes a Transfer that shall cause termination of the tax partnership established by Section shall indemnify the other Members for, from and against any and all loss, cost, expense, damage, liability or claim therefore arising from the Transfer, including without limitation any increase in taxes, interest and penalties or decrease in credits caused by such termination and any tax on indemnification proceeds received by the indemnified Members. (f) In the event of a Transfer of less than all of an Ownership Interest, the transferring Member and its transferee shall act and be treated as one Member under this Agreement; provided that in order for such Transfer to be effective, the transferring Member and its transferee must first: (i) agree, as between themselves, that one of them is authorized to act as the sole agent (“Agent”) on their behalf with respect to all matters pertaining to this Agreement and the Company; and (ii) notify the other Members of the designation of the Agent, and in such notice warrant and represent to the other Members that: (A) the Agent has the sole authority to act on behalf of, and to bind, the transferring Member and its transferee with respect to all matters pertaining to this Agreement and the Company; (B) the other Members may rely on all decisions of, notices and other communications from, and failures to respond by, the Agent, as if given (or not given) by the transferring Member and its transferee; and (C) all decisions of, notices and other communications from, and failures to respond by, the other Members to the Agent shall be deemed to have been given (or not given) to the transferring Member and its transferee. The transferring Member and its transferee may change the Agent (but such replacement must be one of them) by giving notice to the other Members, which notice must conform to Section 9.2(f)(ii). (g) Without the unanimous consent of the Members, no Transfer consisting of the direct or indirect grant of an Encumbrance on an Ownership Interest of a Member shall be effected except that any Transfer consisting of the grant of an Encumbrance on an Ownership Interest shall be permitted to secure a loan or other indebtedness of a Member in a bona fide transaction in connection with such Member’s financing of payment or performance of such Member’s obligations under this Agreement, provided that such Transfer shall be subject to the terms of this Agreement and the rights and interests of the other Members hereunder. Any such Encumbrance shall be further subject to the condition that the holder of such Encumbrance (“Chargee”) first enters into a written agreement with the other Members in form satisfactory to the other Members, acting reasonably, binding upon the Chargee, to the effect that: (i) The Chargee shall not enter into possession or institute any proceedings for foreclosure or partition of the encumbering Member’s Ownership Interest and that such Encumbrance shall be subject to the provisions of this Agreement; (ii) The Chargee’s remedies under the Encumbrance shall be limited to the sale of the whole (but only of the whole) of the encumbering Member’s Ownership Interest to the other Members, or, failing such a sale, at a public auction to be held at least 30 days after prior notice to the other Members, such sale to be subject to the purchaser entering into a written agreement with the other Members whereby such purchaser assumes all obligations of the encumbering Member under the terms of this Agreement. The price of any preemptive sale to the other Member shall be the fair market value (as determined below) of the Ownership Interest securing the Encumbrance, and such preemptive sale shall occur within 60 days of the Chargee’s notice to the other Members of its intent to sell the encumbering Member’s Ownership Interest. Failure of a sale to the other Members to close by the end of such period, unless failure is caused by the encumbering Member or by the Chargee, shall permit the Chargee to sell the encumbering Member’s Ownership Interest at a public sale. Fair market value shall be determined by a qualified independent appraiser appointed by the non-encumbering Members. If the encumbering Member conveys notice of objection to the person so appointed within 10 days after receiving notice thereof, then an independent and qualified appraiser shall be appointed by the joint action of the appraiser appointed by the non-encumbering Members and a qualified independent appraiser appointed by the encumbering Member; provided that if the encumbering Member fails to designate a qualified independent appraiser for such purpose within 10 days after giving notice of such objection, then the person originally designated by the non-encumbering Member shall serve as the appraiser; provided, further, that if the appraisers appointed by each of the Members fail to appoint a third qualified independent appraiser within 5 days after the appointment of the last of them, then an appraiser shall be appointed by a judge of a court of competent jurisdiction in the state in which the Assets are situated upon the application of any Member; and (iii) The charge shall be subordinate to any then-existing debt, including any Project Financing previously approved by the Management Committee, encumbering the transferring Member’s Ownership Interest. (h) Any Member may Transfer all of its Ownership Interest to an Affiliate, provided that any relevant Parent Guarantee remains in effect, the Affiliate assumes all of the transferor Member’s obligations hereunder and arrangements reasonably satisfactory to the non-transferring Members shall have been made to avoid any negative effect on any Permits. Any Member may Transfer a portion of its Ownership Interest to an Affiliate, provided that any relevant Parent Guaranty remains in effect, the transferring Member shall be the agent for the transferee and both the transferor and transferee shall act in common as if they were a single Member for all purposes hereunder and such partial Transfer shall have been conducted in a manner to avoid any negative effect on any Permits. (i) No Transfer of an Ownership Interest shall be permitted to be made over an established securities market or in other circumstances which would cause the Company to be treated as a "publicly traded partnership" for United States federal income tax purposes.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Strathmore Minerals Corp.)
Limitations on Free Transferability. Any Transfer by any Member under Section 10.1 shall be subject to the following limitations:
(a) No no Member shall Transfer any beneficial interest in the Company (including, but not limited to, any royalty, profits, or other interest in the Products) except in conjunction with the Transfer of part or all of its Ownership Interest and in an amount or percentage equal to such transferred Ownership Interest.;
(b) No no transferee of all or any part of a Member’s Ownership Interest shall have the rights of a Member unless and until the transferring Member has provided to the other Members Member notice of the Transfer, and, except as provided in Subsections and Subsection 10.2(f), the transferee, as of the effective date of the Transfer, has committed in writing to assume and be bound by this Agreement to the same extent as the transferring Member.;
(c) No Member no Member, without the consent of the other Member, shall make a Transfer that shall violate any Law, or result in the cancellation of any Permitspermits, licenses licenses, or other similar authorization, unless the effect of such Transfer shall have been made known to the other Members and the other Members shall have consented thereto. Without limiting the generality of the foregoing, no Member shall effect any Transfer that shall require approval by any Governmental Authority unless such approval shall have been obtained at such transferring Member’s sole cost and expense.;
(d) No no Transfer permitted by this Article X shall relieve the transferring Member of any liability of such transferring Member under this Agreement to the extent arising from and relating to periods Agreement, whether accruing before or after such Transfer.;
(e) Any Member that makes a Transfer that shall cause termination of the tax partnership established by Section shall 8.3 shall indemnify the other Members Member for, from and against any and all loss, cost, expense, damage, liability or claim therefore arising from the Transfer, including without limitation any increase in taxes, interest and penalties or decrease in credits caused by such termination and any tax on indemnification proceeds received by the indemnified Members.Member;
(f) In if the event of a Transfer of less than all of an Ownership Interest, the transferring Member and its transferee shall act and be treated as one Member under this Agreement; provided that in order for such Transfer to be effective, the transferring Member and its transferee must first: (i) agree, as between themselves, that one of them is authorized to act as the sole agent (“Agent”) on their behalf with respect to all matters pertaining to this Agreement and the Company; and (ii) notify the other Members of the designation of the Agent, and in such notice warrant and represent to the other Members that: (A) the Agent has the sole authority to act on behalf of, and to bind, the transferring Member and its transferee with respect to all matters pertaining to this Agreement and the Company; (B) the other Members may rely on all decisions of, notices and other communications from, and failures to respond by, the Agent, as if given (or not given) by the transferring Member and its transferee; and (C) all decisions of, notices and other communications from, and failures to respond by, the other Members to the Agent shall be deemed to have been given (or not given) to the transferring Member and its transferee. The transferring Member and its transferee may change the Agent (but such replacement must be one of them) by giving notice to the other Members, which notice must conform to Section 9.2(f)(ii).
(g) Without the unanimous consent of the Members, no Transfer consisting of the direct or indirect grant of an Encumbrance on an Ownership Interest of a Member shall be effected except that any Transfer consisting of the grant of an Encumbrance on an Ownership Interest shall be permitted to secure a loan or other indebtedness of a any Member in a bona fide transaction, other than a transaction approved unanimously by the Management Committee or Project Financing approved by the Management Committee, such Encumbrance shall be granted only in connection with such Member’s financing of payment or performance of such that Member’s obligations under this Agreement, provided that such Transfer Agreement and shall be subject to the terms of this Agreement and the rights and interests of the other Members Member hereunder. Any such Encumbrance shall be further subject to the condition that the holder of such Encumbrance (“Chargee”) first enters into a written agreement with the other Members Member in form satisfactory to the other MembersMember, acting reasonably, binding upon the Chargee, to the effect that:
: (i) The the Chargee shall not enter into possession or institute any proceedings for foreclosure or partition of the encumbering Member’s Ownership Interest and that such Encumbrance shall be subject to the provisions of this Agreement;
; (ii) The the Chargee’s remedies under the Encumbrance shall be limited to the sale of the whole (but only of the whole) of the encumbering Member’s Ownership Interest to the other MembersMember, or, failing such a sale, at a public auction to be held at least 30 sixty (60) days after prior notice to the other MembersMember, such sale to be subject to the purchaser entering into a written agreement with the other Members Member whereby such purchaser assumes all obligations of the encumbering Member under the terms of this Agreement. The price of any preemptive sale to the other Member shall be the fair market value (as determined below) remaining principal amount of the Ownership Interest securing the Encumbranceloan plus accrued interest and related expenses, and such preemptive sale shall occur within 60 sixty (60) days of the Chargee’s notice to the other Members Member of its intent to sell the encumbering Member’s Ownership Interest. Failure of a sale to the other Members Member to close by the end of such period, unless failure is caused by the encumbering Member or by the Chargee, shall permit the Chargee to sell the encumbering Member’s Ownership Interest at a public sale. Fair market value shall be determined by a qualified independent appraiser appointed by the non-encumbering Members. If the encumbering Member conveys notice of objection to the person so appointed within 10 days after receiving notice thereof, then an independent ; and qualified appraiser shall be appointed by the joint action of the appraiser appointed by the non-encumbering Members and a qualified independent appraiser appointed by the encumbering Member; provided that if the encumbering Member fails to designate a qualified independent appraiser for such purpose within 10 days after giving notice of such objection, then the person originally designated by the non-encumbering Member shall serve as the appraiser; provided, further, that if the appraisers appointed by each of the Members fail to appoint a third qualified independent appraiser within 5 days after the appointment of the last of them, then an appraiser shall be appointed by a judge of a court of competent jurisdiction in the state in which the Assets are situated upon the application of any Member; and
(iii) The the charge shall be subordinate to any then-existing debt, including any Project Financing previously approved by the Management Committee, encumbering the transferring Member’s Ownership Interest.
(h) Any Member may Transfer all of its Ownership Interest to an Affiliate, provided that any relevant Parent Guarantee remains in effect, the Affiliate assumes all of the transferor Member’s obligations hereunder and arrangements reasonably satisfactory to the non-transferring Members shall have been made to avoid any negative effect on any Permits. Any Member may Transfer a portion of its Ownership Interest to an Affiliate, provided that any relevant Parent Guaranty remains in effect, the transferring Member shall be the agent for the transferee and both the transferor and transferee shall act in common as if they were a single Member for all purposes hereunder and such partial Transfer shall have been conducted in a manner to avoid any negative effect on any Permits.
(i) No Transfer of an Ownership Interest shall be permitted to be made over an established securities market or in other circumstances which would cause the Company to be treated as a "publicly traded partnership" for United States federal income tax purposes.
Appears in 1 contract
Sources: Limited Liability Company Operating Agreement (Strathmore Minerals Corp.)
Limitations on Free Transferability. Any Transfer by any either Member under Section 9.1 shall be subject to the following limitations:
(a) No Except (i) as expressly provided in Section 9.2(i) below, and (ii) Transfers enumerated in Paragraph 1.2 of Exhibit F that are exempt from the pre-emptive right described in Section 9.3 and Exhibit F, no Member may Transfer its Ownership Interest or any part thereof without the consent of the other Member, which consent shall not be unreasonably withheld or delayed. In connection with any such proposed Transfer, the transferring Member shall provide the other Member such financial and other information regarding the proposed transferee as the non-transferring Member may reasonably request. Without limiting the generality of the right of a Member to withhold its consent reasonably to a Transfer by the other Member, such consent may be withheld if the Member whose consent is sought shall, in good faith, determine that a proposed transferee (and any proposed guarantor of its obligations) lacks the necessary technical expertise or financial resources to properly and timely perform its obligations under this Agreement;
(b) Neither Member shall Transfer any beneficial interest in the Company except in conjunction with the Transfer of part or all of its Ownership Interest and in an amount or percentage equal to such transferred Ownership Interest.;
(bc) No transferee of all or any part of a Member’s Ownership Interest shall have the rights of a Member unless and until the transferring Member has provided to the other Members Member notice of the Transfer, and, except as provided in Subsections Sections 9.2(g) and 9.2(h), the transferee, as of the effective date of the Transfer, has committed in writing to assume and be bound by this Agreement to the same extent as the transferring Member.;
(cd) No Neither Member shall make a Transfer that shall violate any Law, or result in the cancellation of any Permits, licenses licenses, or other similar authorization, unless the effect of such Transfer shall have been made known to the other Members Member and the other Members Member shall have consented thereto. Without limiting the generality of the foregoing, no Member shall effect any Transfer that shall require approval by any Governmental Authority unless such approval shall have been obtained at such transferring Member’s sole cost and expense.;
(de) No Transfer permitted by this Article shall relieve the transferring Member of any liability of such transferring Member under this Agreement to the extent arising from and relating to periods before such Transfer.;
(ef) Any Member that makes a Transfer that shall cause termination of the tax partnership established by Section 7.2 shall indemnify the other Members Member for, from and against any and all loss, cost, expense, damage, liability or claim therefore arising from the Transfer, including without limitation any increase in taxes, interest and penalties or decrease in credits caused by such termination and any tax on indemnification proceeds received by the indemnified Members.Member;
(fg) In the event of a Transfer of less than all of an Ownership Interest, the transferring Member and its transferee shall act and be treated as one Member under this Agreement; provided however, that in order for such Transfer to be effective, the transferring Member and its transferee must first: :
(i) agreeAgree, as between themselves, that one of them is authorized to act as the sole agent (“Agent”) on their behalf with respect to all matters pertaining to this Agreement and the Company; and and
(ii) notify Notify the other Members Member of the designation of the Agent, and in such notice warrant and represent to the other Members Member that: :
(A) the Agent has the sole authority to act on behalf of, and to bind, the transferring Member and its transferee with respect to all matters pertaining to this Agreement and the Company; ;
(B) the other Members Member may rely on all decisions of, notices and other communications from, and failures to respond by, the Agent, as if given (or not given) by the transferring Member and its transferee; and and
(C) all decisions of, notices and other communications from, and failures to respond by, the other Members Member to the Agent shall be deemed to have been given (or not given) to the transferring Member and its transferee. The transferring Member and its transferee may change the Agent (but such replacement must be one of them) by giving notice to the other MembersMember, which notice must conform to Section 9.2(f)(ii9.2(g)(ii).;
(gh) Without the unanimous consent of the MembersMembers and, if the Project Financing remains unpaid, the lender under the Project Financing, no Transfer consisting of the direct or indirect grant of an Encumbrance on an Ownership Interest of a any Member shall be effected except that (other than an Encumbrance to secure the Project Financing) unless and until the later of (x) CPC and (y) repayment in full of the Project Financing. Thereafter, any Transfer consisting of the grant of an Encumbrance on an Ownership Interest shall be permitted to secure a loan or other indebtedness of a either Member in a bona fide transaction in connection with such Member’s financing of payment or performance of such Member’s obligations under this Agreementtransaction, provided that such Transfer shall be subject to the terms of this Agreement and the rights and interests of the other Members Member hereunder. Any such Encumbrance other than in connection with the Project Financing shall be further subject to the condition that the holder of such Encumbrance (“Chargee”) first enters into a written agreement with the other Members Member in form satisfactory to the other MembersMember, acting reasonably, binding upon the Chargee, to the effect that:
(i) The Chargee shall not enter into possession or institute any proceedings for foreclosure or partition of the encumbering Member’s Ownership Interest and that such Encumbrance shall be subject to the provisions of this Agreement;
(ii) The Chargee’s remedies under the Encumbrance shall be limited to the sale of the whole (but only of the whole) of the encumbering Member’s Ownership Interest to the other MembersMember, or, failing such a sale, at a public auction to be held at least 30 twenty (20) days after prior notice to the other MembersMember, such sale to be subject to the purchaser entering into a written agreement with the other Members Member whereby such purchaser assumes all obligations of the encumbering Member under the terms of this Agreement. The price of any preemptive sale to the other Member shall be the fair market value (as determined below) of the Ownership Interest securing the Encumbrance, and such preemptive sale shall occur within 60 sixty (60) days of the Chargee’s notice to the other Members Member of its intent to sell the encumbering Member’s Ownership Interest. Failure of a sale to the other Members Member to close by the end of such period, unless failure is caused by the encumbering Member or by the Chargee, shall permit the Chargee to sell the encumbering Member’s Ownership Interest at a public sale. Fair market value shall be determined by a qualified independent appraiser appointed by the non-encumbering MembersMember. If the encumbering Member conveys notice of objection to the person so appointed within 10 ten (10) days after receiving notice thereof, then an independent and qualified appraiser shall be appointed by the joint action of the appraiser appointed by the non-encumbering Members Member and a qualified independent appraiser appointed by the encumbering Member; provided provided, however, that if the encumbering Member fails to designate a qualified independent appraiser for such purpose within 10 ten (10) days after giving notice of such objection, then the person originally designated by the non-encumbering Member shall serve as the appraiser; provided, provided further, that if the appraisers appointed by each of the Members fail to appoint a third qualified independent appraiser within 5 five (5) days after the appointment of the last of them, then an appraiser shall be appointed by a judge of a court of competent jurisdiction in the state in which the Assets are situated upon the application of any either Member; and
(iii) The charge shall be subordinate to any then-existing debt, including any Project Financing previously approved by the Management Committee, encumbering the transferring Member’s Ownership Interest.; and
(hi) Any Member may Transfer all of its Ownership Interest to an Affiliate, provided that any relevant Parent Guarantee Guaranty remains in effect, the Affiliate assumes all of the transferor Member’s obligations hereunder and arrangements reasonably satisfactory to the non-transferring Members shall have been made to avoid any negative effect on any Permits. Any Member may Transfer a portion of its Ownership Interest to an Affiliate, provided that any relevant Parent Guaranty remains in effect, the transferring Member shall be the agent for the transferee and both the transferor and transferee shall act in common as if they were a single Member for all purposes hereunder and such partial Transfer shall have been conducted in a manner to avoid any negative effect on any Permits.
(i) No Transfer of an Ownership Interest shall be permitted to be made over an established securities market or in other circumstances which would cause the Company to be treated as a "publicly traded partnership" for United States federal income tax purposes.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Uranium Resources Inc /De/)
Limitations on Free Transferability. Any Transfer by any either Member under Section shall be subject to the following limitations:
(a) No Neither Member shall Transfer any beneficial interest in the Company (including, but not limited to, any royalty, profits, or other interest in the Products) except in conjunction with the Transfer of part or all of its Ownership Interest and in an amount or percentage equal to such transferred Ownership Interest.;
(b) No transferee of all or any part of a Member’s Ownership Interest shall have the rights of a Member unless and until the transferring Member has provided to the other Members Member notice of the Transfer, the other Member has consented in writing to the Transfer (such consent not to be unreasonably withheld or delayed), and, except as provided in Subsections Sections 3.6.2(f) and (g), the transferee, as of the effective date of the Transfer, has committed in writing to assume and be bound by this Agreement to the same extent as the transferring Member.;
(c) No Member Neither Member, without the consent of the other Member, shall make a Transfer that shall violate any Law, or result in the cancellation cancellation, suspension or revocation of any Permitspermits, licenses licenses, or other similar authorization, unless the effect of such Transfer shall have been made known to the other Members and the other Members shall have consented thereto. Without limiting the generality of the foregoing, no Member shall effect any Transfer that shall require approval by any Governmental Authority unless such approval shall have been obtained at such transferring Member’s sole cost and expense.;
(d) No Transfer permitted by this Article shall relieve the transferring Member of any liability of such transferring Member under this Agreement to the extent arising from and relating to periods Agreement, whether accruing before or after such Transfer., unless the other Member consents to such Transfer in writing;
(e) Any Member that makes a Transfer that shall cause termination for federal income tax purposes of the tax partnership established by Section this Agreement shall defend, indemnify and hold the other Members Member harmless for, from and against any and all loss, cost, expense, damage, liability or claim therefore arising from the Transfer, including without limitation any increase in taxes, interest and penalties or decrease in credits caused by such termination and any tax on indemnification proceeds received by the indemnified Members.Member;
(f) In the event of a Transfer of less than all of an Ownership Interest, the transferring Member and its transferee shall act and be treated as one Member under this Agreement; provided however, that in order for such Transfer to be effective, the transferring Member and its transferee must first: :
(i) agreeAgree, as between themselves, that one of them is authorized to act as the sole agent (“Agent”) on their behalf with respect to all matters pertaining to this Agreement and the Company; and and
(ii) notify Notify the other Members Member of the designation of the Agent, and in such notice warrant and represent to the other Members Member that: :
(A1) the Agent has the sole authority to act on behalf of, and to bind, the transferring Member and its transferee with respect to all matters pertaining to this Agreement and the Company; ;
(B2) the other Members Member may rely on all decisions of, notices and other communications from, and failures to respond by, the Agent, as if given (or not given) by the transferring Member and its transferee; and and
(C3) all decisions of, notices and other communications from, and failures to respond by, the other Members Member to the Agent shall be deemed to have been given (or not given) to the transferring Member and its transferee. The transferring Member and its transferee may change the Agent (but such replacement must be one of them) by giving notice to the other Members, which notice must conform to Section 9.2(f)(ii)Member.
(g) Without If the unanimous consent of the Members, no Transfer consisting of the direct or indirect grant of an Encumbrance on an Ownership Interest of a Member shall be effected except that any Transfer consisting of is the grant of an Encumbrance on an Ownership Interest shall be permitted to secure a loan or other indebtedness of a either Member in a bona fide transaction, other than a transaction approved unanimously by the Management Committee or Project Financing approved by the Management Committee, such Encumbrance shall be granted only in connection with such Member’s financing of payment or performance of such that Member’s obligations under this Agreement, provided that such Transfer Agreement and shall be subject to the terms of this Agreement and the rights and interests of the other Members Member hereunder. Any such Encumbrance shall be further subject to the condition that the holder of such Encumbrance (the “Chargee”) first enters into a written agreement with the other Members Member in form satisfactory to the other MembersMember, acting reasonably, binding upon the Chargee, to the effect that:
(i) The Chargee shall not enter into possession or institute any proceedings for foreclosure or partition of the encumbering Member’s Ownership Interest and that such Encumbrance shall be subject to the provisions of this Agreement;
(ii) The Chargee’s remedies under the Encumbrance shall be limited to the sale of the whole (but only of the whole) of the encumbering Member’s Ownership Interest to the other MembersMember, or, failing such a sale, at a public auction to be held at least 30 thirty (30) days after prior notice to the other MembersMember, such sale to be subject to the purchaser entering into a written agreement with the other Members Member whereby such purchaser assumes all obligations of the encumbering Member under the terms of this Agreement. The price of any preemptive sale to the other Member shall be the fair market value (as determined below) remaining principal amount of the Ownership Interest securing the Encumbranceloan plus accrued interest and related expenses, and such preemptive sale shall occur within 60 sixty (60) days of after the Chargee’s notice to the other Members Member of its intent to sell the encumbering Member’s Ownership Interest. Failure of a sale to the other Members Member to close by the end of such period, unless failure is caused by the encumbering Member or by the Chargee, shall permit the Chargee to sell the encumbering Member’s Ownership Interest at a public sale. Fair market value shall be determined by a qualified independent appraiser appointed by the non-encumbering Members. If the encumbering Member conveys notice of objection to the person so appointed within 10 days after receiving notice thereof, then an independent and qualified appraiser shall be appointed by the joint action of the appraiser appointed by the non-encumbering Members and a qualified independent appraiser appointed by the encumbering Member; provided that if the encumbering Member fails to designate a qualified independent appraiser for such purpose within 10 days after giving notice of such objection, then the person originally designated by the non-encumbering Member shall serve as the appraiser; provided, further, that if the appraisers appointed by each of the Members fail to appoint a third qualified independent appraiser within 5 days after the appointment of the last of them, then an appraiser shall be appointed by a judge of a court of competent jurisdiction in the state in which the Assets are situated upon the application of any Member; and
(iii) The charge Encumbrance shall be subordinate to any then-existing debt, including any Project Financing previously approved by the Management Committee, encumbering the transferring Member’s Ownership Interest.
(h) Any If a sale or other commitment or disposition of Products or proceeds from the sale of Products by a Member may Transfer all of its Ownership Interest upon distribution to an Affiliateit creates in a third party a security interest in Products or proceeds therefrom prior to such distribution, provided that any relevant Parent Guarantee remains in effectsuch sales, the Affiliate assumes all of the transferor Member’s obligations hereunder and arrangements reasonably satisfactory commitment or disposition shall be subject to the non-transferring Members shall have been made to avoid any negative effect on any Permits. Any Member may Transfer a portion terms and conditions of its Ownership Interest to an Affiliate, provided that any relevant Parent Guaranty remains in effect, the transferring Member shall be the agent for the transferee and both the transferor and transferee shall act in common as if they were a single Member for all purposes hereunder and such partial Transfer shall have been conducted in a manner to avoid any negative effect on any Permitsthis Agreement.
(i) No Transfer of an Ownership Interest Only United States currency shall be permitted to be made over an established securities market used for Transfers for cash consideration or in other circumstances which would cause the Company to be treated as a "publicly traded partnership" for United States federal income tax purposesmonetary equivalent.
Appears in 1 contract
Sources: Operating Agreement (Golden Phoenix Minerals Inc /Mn/)
Limitations on Free Transferability. Any The Transfer by any right of a Member under in Section 15.1 shall be subject to the following limitationsterms and conditions:
(a) No Member Transfer of a Membership Interest or any economic interest therein shall Transfer any beneficial interest in be valid or recognized by the Company except in conjunction with the Transfer of part or all of its Ownership Interest and in an amount or percentage equal to such transferred Ownership Interest.
(b) No transferee of all or any part of a Member’s Ownership Interest shall have the rights of a Member unless and until the transferring Member has provided to the other Members notice Member Notice of the Transfer, and, except as provided in Subsections and , the transferee, as of the effective date of the Transfer, has committed in writing to assume and be bound by this Agreement to the same extent as the transferring Member.
(cb) No Member Member, without the consent of the other Member, shall make a Transfer that which shall violate any Law, or result in the cancellation of any Permits, licenses or other similar authorization, unless the effect of such Transfer shall have been made known to the other Members and the other Members shall have consented thereto. Without limiting the generality cause a termination of the foregoing, no Member shall effect any Transfer that shall require approval by any Governmental Authority unless such approval shall have been obtained at such transferring MemberCompany’s sole cost and expensetreatment as a partnership for Federal income tax purposes.
(dc) No Transfer permitted by this Article XV shall relieve the transferring Member of its share of any liability liability, whether accruing before or after such Transfer, which arises out of Operations conducted or conditions existing prior to such Transfer, including as provided in Section 6.6.
(d) As provided in Exhibit C, the transferring Member under this Agreement to and the extent arising from and relating to periods before such transferee shall bear all tax consequences of the Transfer.
(e) Any Member that makes a Transfer that shall cause termination of the tax partnership established by Section shall indemnify the other Members for, from and against any and all loss, cost, expense, damage, liability or claim therefore arising from the Transfer, including without limitation any increase in taxes, interest and penalties or decrease in credits caused by such termination and any tax on indemnification proceeds received by the indemnified Members.
(f) In the event of a Transfer of less than all of an Ownership a Member’s Membership Interest, the transferring Member and its transferee shall thereafter act and be treated as one Member, and such Member under this Agreement; provided that in order for such Transfer to be effectivewith the greater Percentage Interest (or if both the transferor and transferee have equal Percentage Interests, the transferring transferor) is hereby appointed the agent and attorney-in-fact of such Member and its transferee must first: (i) agree, as between themselves, that one of them is authorized to act as with the sole agent (“Agent”) on their behalf lesser Percentage Interest with respect to the exercise of all matters pertaining rights to this Agreement and the Company; and (ii) notify the other Members of the designation of the Agent, and in such notice warrant and represent appoint representatives to the other Members that: (A) the Agent has the sole authority to act on behalf ofBoard, and to bindvote, the transferring Member and its transferee consent, approve or otherwise make any decisions with respect to all matters pertaining to this Agreement and the management or Operations or the Company; (B) the other Members may rely on all decisions of, notices and other communications from, and failures to respond by, the Agent, as if given (or not given) by the transferring Member and its transferee; and (C) all decisions of, notices and other communications from, and failures to respond by, the other Members to the Agent shall be deemed to have been given (or not given) to the transferring Member and its transferee. The transferring Member and its transferee may change the Agent (but such replacement must be one of them) by giving notice to the other Members, which notice must conform to Section 9.2(f)(ii).
(gf) Without If the unanimous consent of the Members, no Transfer consisting of the direct or indirect grant of an Encumbrance on an Ownership Interest of a Member shall be effected except that any Transfer consisting of is the grant of an Encumbrance on an Ownership a Membership Interest shall be permitted to secure a loan or other indebtedness of a Member in a bona fide transaction in connection with Member, such Member’s financing of payment or performance of such Member’s obligations under this Agreement, provided that such Transfer Encumbrance shall be subject subordinate to the terms of this Agreement and the rights and interests any security interest securing any obligation of the Company or any obligation of the granting Member to the Company or the other Members hereunderMember to the extent arising out or relating to the Company. Any such The Encumbrance shall be further subject to provide that in connection with any foreclosure, transfer in lieu, or other enforcement of rights in the condition that security interest, the holder of such Encumbrance (“Chargee”) first enters into a written agreement with the other Members in form satisfactory to the other Members, acting reasonably, binding upon the Chargee, to the effect that:
(i) The Chargee shall not enter into possession or institute any proceedings for foreclosure or partition of the encumbering Member’s Ownership Interest and that such Encumbrance acquiring third party shall be subject to the provisions of this Agreement;
(ii) The Chargee’s remedies under the Encumbrance shall be limited to the sale of the whole (but only of the whole) of the encumbering Member’s Ownership Interest to the other Members, or, failing such a sale, at a public auction to be held at least 30 days after prior notice to the other Members, such sale to be subject to the purchaser entering into a written agreement with the other Members whereby such purchaser assumes all obligations of the encumbering Member under bound by the terms of this Agreement. The price , including Sections 12.2 and 15.3, and shall acquire only the rights of any preemptive sale an assignee of the Membership Interest, and shall not, without the unanimous approval of the remaining Members, be admitted to the other Company as a Member.
(g) No Member shall be enter into any sale or other commitment or agree to dispose of Products or proceeds from the fair market value (as determined below) sale of the Ownership Interest securing the Encumbrance, and Products by such preemptive Member upon distribution to it pursuant to Article XI if such sale shall occur within 60 days of the Chargee’s notice to the or other Members of its intent to sell the encumbering Member’s Ownership Interest. Failure of a sale to the other Members to close by the end of such period, unless failure is caused by the encumbering Member or by the Chargee, shall permit the Chargee to sell the encumbering Member’s Ownership Interest at a public sale. Fair market value shall be determined by a qualified independent appraiser appointed by the non-encumbering Members. If the encumbering Member conveys notice of objection to the person so appointed within 10 days after receiving notice thereof, then an independent and qualified appraiser shall be appointed by the joint action of the appraiser appointed by the non-encumbering Members and a qualified independent appraiser appointed by the encumbering Member; provided that if the encumbering Member fails to designate a qualified independent appraiser for such purpose within 10 days after giving notice of such objection, then the person originally designated by the non-encumbering Member shall serve as the appraiser; provided, further, that if the appraisers appointed by each of the Members fail to appoint commitment will create in a third qualified independent appraiser within 5 days after the appointment of the last of them, then an appraiser shall be appointed by party a judge of a court of competent jurisdiction security interest in the state in which the Assets are situated upon the application of any Member; and
(iii) The charge shall be subordinate Products or proceeds therefrom prior to any then-existing debt, including any Project Financing previously approved by the Management Committee, encumbering the transferring Member’s Ownership Interestsuch distribution.
(h) Any If, contrary to Section 15.2(b), a Transfer is made which causes termination of the Company as a partnership for Federal income tax purposes, the transferring Member may Transfer shall indemnify, defend and hold harmless the other Member and its Affiliates from and against any and all loss, cost, expense or damage arising from such termination.
(i) Except with regard to transfers by a Member of all or any part of its Ownership Membership Interest to an Affiliate, provided that any relevant Parent Guarantee remains in effect, the Affiliate assumes all of the transferor Member’s obligations hereunder and arrangements reasonably satisfactory to the non-transferring Members shall have been made to avoid any negative effect on any Permits. Any Member may Transfer a portion of its Ownership Interest to an Affiliate, provided that any relevant Parent Guaranty remains in effect, the transferring Member only United States currency shall be the agent used as consideration for the transferee and both the transferor and transferee shall act in common as if they were a single Member for all purposes hereunder and such partial Transfer shall have been conducted in a manner to avoid any negative effect on any PermitsTransfers.
(i) No Transfer of an Ownership Interest shall be permitted to be made over an established securities market or in other circumstances which would cause the Company to be treated as a "publicly traded partnership" for United States federal income tax purposes.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Novagold Resources Inc)
Limitations on Free Transferability. A Member may freely transfer its Ownership Interest, or any beneficial interest therein to an Affiliate or a Related Party or by Encumbrance to a lender to secure a loan or other indebtedness of such Member. Any Transfer by any either Member under Section 7.1 shall be subject to the following limitations:
(a) No Except for an Encumbrance in favor of a lender as provided for in Subsection 7.2(g)(iii), neither Member shall Transfer any beneficial interest in the Company (including, but not limited to, any royalty, profits, or other interest in the Products) except in conjunction with the Transfer of part or all of its Ownership Interest and in an amount or percentage equal to such transferred Ownership Interest.;
(b) No transferee of all or any part of a Member’s 's Ownership Interest shall have the rights of a Member unless and until the transferring Member has provided to the other Members Member notice of the Transfer, and, except as provided in Subsections 7.2(f) and 7.2(g), the transferee, as of the effective date of the Transfer, has committed in writing to assume and be bound by this Agreement to the same extent as the transferring Member.Member and the remaining Member has consented to such Transfer;
(c) No Member Neither Member, without the consent of the other Member, shall make a Transfer that shall violate any Law, or result in the cancellation of any Permitspermits, licenses licenses, or other similar authorization, unless the effect of such Transfer shall have been made known to the other Members and the other Members shall have consented thereto. Without limiting the generality of the foregoing, no Member shall effect any Transfer that shall require approval by any Governmental Authority unless such approval shall have been obtained at such transferring Member’s sole cost and expense.;
(d) No Transfer permitted by this Article shall relieve the transferring Member of any liability of such transferring Member under this Agreement Agreement, whether accruing before or after such Transfer unless the remaining Member has consented to such Transfer or the transferee has a Net Worth and creditworthiness at least equal to the extent arising from greater of (i) the transferring Member's Net Worth and relating to periods before creditworthiness on the Effective Date of this Agreement or (ii) the transferring Member's Net Worth and creditworthiness on the date of such Transfer.;
(e) Any Member that makes a Transfer that shall cause termination of the tax partnership established by Section 5.2 shall indemnify the other Members Member for, from and against any and all loss, cost, expense, damage, liability or claim therefore arising from the Transfer, including without limitation any increase in taxes, interest and penalties or decrease in credits caused by such termination and any tax on indemnification proceeds received by the indemnified Members.Member and by acceleration of the payment of taxes into earlier time periods;
(f) In the event of a Transfer of less than all of an Ownership Interest, the transferring Member and its transferee shall act and be treated as one Member under this Agreement; provided however, that in order for such Transfer to be effective, the transferring Member and its transferee must first: :
(i) agree, as between themselves, that one of them is authorized to act as the sole agent (“"Agent”") on their behalf with respect to all matters pertaining to this Agreement and the Company; and and
(ii) notify the other Members Member of the designation of the Agent, and in such notice warrant and represent to the other Members Member that: :
(A) the Agent has the sole authority to act on behalf of, and to bind, the transferring Member and its transferee with respect to all matters pertaining to this Agreement and the Company; ;
(B) the other Members Member may rely on all decisions of, notices and other communications from, and failures to respond by, the Agent, as if given (or not given) by the transferring Member and its transferee; and and
(C) all decisions of, notices and other communications from, and failures to respond by, the other Members Member to the Agent shall be deemed to have been given (or not given) to the transferring Member and its transferee. The transferring Member and its transferee may change the Agent (but such replacement must be one of them) by giving notice to the other MembersMember, which notice must conform to Section 9.2(f)(iiSubsection 7.2(f)(ii).; and
(g) Without If the unanimous consent of the Members, no Transfer consisting of the direct or indirect grant of an Encumbrance on an Ownership Interest of a Member shall be effected except that any Transfer consisting of is the grant of an Encumbrance on an Ownership Interest shall be permitted or beneficial interest in the Property of the Company to secure a loan or other indebtedness of a either Member in a bona fide transaction transaction, at the request of the Member granting the Encumbrance, the Manager shall execute documentation on behalf of the Company granting a lien and security interest in connection with such the Properties of the Company equal to the beneficial Ownership Interest of the Member’s financing of payment or performance of such Member’s obligations under this Agreement; provided, provided however, that such Transfer documentation shall be subject non-recourse to the terms of this Agreement Company and shall not encumber the rights and interests beneficial interest or Ownership Interest of the other Members hereunderMembers. Any such Encumbrance of a Member's Ownership Interest in the Company shall be further subject to the condition that the holder of such Encumbrance (“"Chargee”") first enters into a written agreement with the other Members Member in form satisfactory to the other MembersMember, acting reasonably, binding upon the Chargee, to the effect that:
(i) The the Chargee shall not enter into possession or institute any proceedings for foreclosure or partition of the encumbering Member’s 's Ownership Interest and that such Encumbrance shall be subject to the provisions of this Agreement;
(ii) The the Chargee’s 's remedies under the Encumbrance of a Member's Ownership Interest in the Company shall be limited to the sale of the whole (but only of the whole) of the encumbering Member’s 's Ownership Interest to the other MembersMember, or, failing such a sale, at a public auction to be held at least 30 twenty (20) days after prior notice to the other MembersMember, such sale to be subject to the purchaser entering into a written agreement with the other Members Member whereby such purchaser assumes all obligations of the encumbering Member under the terms of this Agreement. The price of any preemptive sale to the other Member shall be the fair market value (as determined below) of the Ownership Interest securing the Encumbrance, and such preemptive sale shall occur within 60 days of the Chargee’s notice to the other Members of its intent to sell the encumbering Member’s Ownership Interest. Failure of a sale to the other Members Member to close by within sixty (60) days after Chargee notifies the end Members of such periodthe sale of a Member's Ownership Interest, unless such failure is caused by the encumbering Member or by the Chargee, shall permit the Chargee to sell the encumbering Member’s 's Ownership Interest at a public sale. Fair market value shall be determined by a qualified independent appraiser appointed by the non-encumbering Members. If the encumbering Member conveys notice of objection to the person so appointed within 10 days after receiving notice thereof, then an independent and qualified appraiser shall be appointed by the joint action of the appraiser appointed by the non-encumbering Members and a qualified independent appraiser appointed by the encumbering Member; provided that if the encumbering Member fails to designate a qualified independent appraiser for such purpose within 10 days after giving notice of such objection, then the person originally designated by the non-encumbering Member shall serve as the appraiser; provided, further, that if the appraisers appointed by each of the Members fail to appoint a third qualified independent appraiser within 5 days after the appointment of the last of them, then an appraiser shall be appointed by a judge of a court of competent jurisdiction in the state in which the Assets are situated upon the application of any Member; and;
(iii) The the Chargee's remedies under an Encumbrance covering an undivided interest in the Properties of the Company equal to the Ownership Interest of the encumbering Member shall be limited to the sale of the whole of such interest to the other Member, or, failing such a sale, in accordance with the terms and provisions of the documentation creating a lien and security interest against such Properties; provided, however, that should an ownership interest in the properties be conveyed to a third party pursuant to such a sale, the properties shall be subject to the terms and provisions of a joint operating agreement naming the Company as operator, containing non-consent provisions the same as contained in Subsections 10.5(a) and (b) hereof, providing the Manager with authority to cast the deciding vote with respect to any proposal which is favored and opposed by owners of 50% of the interest in the Property, and containing accounting procedures in substantially the form of Exhibit B attached hereto, as modified to reflect differing direct ownership interests in the Property, but in all events to permit the Company, as operator, to charge the joint account for any costs and expenses which the Manager may charge the Business Account under Exhibit B attached hereto;
(iv) any Encumbrance shall be subordinate to any then-existing debt, including any Project Financing previously approved by the Management Committee, encumbering the transferring Member’s 's Ownership Interest.; and
(hv) Any Member may Transfer all of notwithstanding the foregoing, KLT Gas understands and agrees that Patric▇ ▇▇▇▇ borrow Three Million Dollars ($3,000,000) against its Ownership Interest for reimbursing costs advanced to an Affiliate, provided that any relevant Parent Guarantee remains in effect, the Affiliate assumes all of the transferor Member’s obligations hereunder and arrangements reasonably satisfactory to the non-transferring Members shall have been made to avoid any negative effect on any Permits. Any Member may Transfer a portion of its Ownership Interest to an Affiliate, provided that any relevant Parent Guaranty remains in effect, the transferring Member shall be the agent for the transferee and both the transferor and transferee shall act in common as if they were a single Member for all purposes hereunder and such partial Transfer shall have been conducted in a manner to avoid any negative effect on any PermitsPatric▇ ▇▇ ▇ Related Party.
(i) No Transfer of an Ownership Interest shall be permitted to be made over an established securities market or in other circumstances which would cause the Company to be treated as a "publicly traded partnership" for United States federal income tax purposes.
Appears in 1 contract
Limitations on Free Transferability. Any The Transfer by any right of a Member under in Section 15.1 shall be subject to the following limitationsterms and conditions:
(a) No Member Transfer of a Membership Interest or any economic interest therein shall Transfer any beneficial interest in be valid or recognized by the Company except in conjunction with the Transfer of part or all of its Ownership Interest and in an amount or percentage equal to such transferred Ownership Interest.
(b) No transferee of all or any part of a Member’s Ownership Interest shall have the rights of a Member unless and until the transferring Member has provided to the other Members Member notice of the Transfer, and, except as provided in Subsections and , the transferee, as of the effective date of the Transfer, has committed in writing to assume and be bound by this Agreement to the same extent as the transferring Member.;
(cb) No Member Member, without the consent of the other Member, shall make a Transfer that which shall violate any Lawcause termination of the Company as a partnership for Federal income tax purposes, provided, however, nothing contained herein shall restrict the sale or result in the cancellation transfer of any Permits, licenses or other similar authorization, unless the effect of such Transfer shall have been made known to the other Members and the other Members shall have consented thereto. Without limiting the generality all of the foregoing, no Member shall effect any Transfer that shall require approval by any Governmental Authority unless such approval shall have been obtained at such transferring Member’s sole cost and expense.capital stock of CORE or Royal;
(dc) No Transfer permitted by this Article XV shall relieve the transferring Member of its share of any liability of such transferring Member under this Agreement to the extent arising from and relating to periods Agreement, whether accruing before or after such Transfer.
(e) Any Member that makes a Transfer that shall cause termination , which arises out of the tax partnership established by Section shall indemnify the other Members for, from and against any and all loss, cost, expense, damage, liability or claim therefore arising from the Operations conducted prior to such Transfer, including without limitation any increase as provided in taxesSection 6.5 unless such liability is expressly novated in an agreement between the transferring Member, interest its transferee and penalties or decrease in credits caused by such termination and any tax on indemnification proceeds received by the indemnified Members.remaining Member;
(fd) As provided in Exhibit C, the transferring Member and the transferee shall bear all tax consequences of the Transfer;
(e) In the event of a Transfer of less than all of an Ownership a Member’s Membership Interest, the transferring Member and its transferee shall thereafter act and be treated as one Member, with the Member under this Agreement; provided that in order for such Transfer to be effective, with the transferring greater Percentage Interest hereby appointed the agent and attorney-in-fact of the Member and its transferee must first: (i) agree, as between themselves, that one of them is authorized to act as with the sole agent (“Agent”) on their behalf lesser Percentage Interest with respect to the exercise of all matters pertaining rights to this Agreement and the Company; and (ii) notify the other Members of the designation of the Agentvote, and in such notice warrant and represent to the other Members that: (A) the Agent has the sole authority to act on behalf ofconsent, and to bind, the transferring Member and its transferee approve or otherwise make any decisions with respect to all matters pertaining to this Agreement and the management or Operations or the Company; (B) the other Members may rely on all decisions of, notices and other communications from, and failures to respond by, the Agent, as if given (or not given) by the transferring Member and its transferee; and (C) all decisions of, notices and other communications from, and failures to respond by, the other Members to the Agent shall be deemed to have been given (or not given) to the transferring Member and its transferee. The transferring Member and its transferee may change the Agent (but such replacement must be one of them) by giving notice to the other Members, which notice must conform to Section 9.2(f)(ii).;
(gf) Without If the unanimous consent of the Members, no Transfer consisting of the direct or indirect grant of an Encumbrance on an Ownership Interest of a Member shall be effected except that any Transfer consisting of is the grant of an Encumbrance a security interest or other Lien on an Ownership a Membership Interest shall be permitted to secure a loan or other indebtedness of a Member in a bona fide transaction in connection with Member, such Member’s financing of payment security interest or performance of such Member’s obligations under this Agreement, provided that such Transfer other Lien shall be subject subordinate to the terms of this Agreement and the rights and interests any pledge securing any obligation of the Company or any obligation of the granting Member to the Company or the other Members hereunderMember to the extent arising out or relating to the Company. Any such Encumbrance In connection with any foreclosure, transfer in lieu, or other enforcement of rights in the security interest, the acquiring third party shall be further subject to the condition that the holder of such Encumbrance (“Chargee”) first enters into a written agreement with the other Members in form satisfactory to the other Members, acting reasonably, binding upon the Chargee, to the effect that:
(i) The Chargee shall not enter into possession or institute any proceedings for foreclosure or partition of the encumbering Member’s Ownership Interest and that such Encumbrance shall be subject to the provisions of this Agreement;
(ii) The Chargee’s remedies under the Encumbrance shall be limited to the sale of the whole (but only of the whole) of the encumbering Member’s Ownership Interest to the other Members, or, failing such a sale, at a public auction to be held at least 30 days after prior notice to the other Members, such sale to be subject to the purchaser entering into a written agreement with the other Members whereby such purchaser assumes all obligations of the encumbering Member under bound by the terms of this Agreement. The price , including without limitation, Section 15.3, and shall acquire only the rights of any preemptive sale an assignee of the Membership Interest, and shall not, without the unanimous approval of the remaining Members, be admitted to the other Company as a Member;
(g) No Member shall be enter into any sale or other commitment or agree to dispose of Products or proceeds from the fair market value (as determined below) sale of the Ownership Interest securing the Encumbrance, and Products by such preemptive Member upon distribution to it pursuant to Article XI if such sale shall occur within 60 days of the Chargee’s notice to the or other Members of its intent to sell the encumbering Member’s Ownership Interest. Failure of a sale to the other Members to close by the end of such period, unless failure is caused by the encumbering Member or by the Chargee, shall permit the Chargee to sell the encumbering Member’s Ownership Interest at a public sale. Fair market value shall be determined by a qualified independent appraiser appointed by the non-encumbering Members. If the encumbering Member conveys notice of objection to the person so appointed within 10 days after receiving notice thereof, then an independent and qualified appraiser shall be appointed by the joint action of the appraiser appointed by the non-encumbering Members and a qualified independent appraiser appointed by the encumbering Member; provided that if the encumbering Member fails to designate a qualified independent appraiser for such purpose within 10 days after giving notice of such objection, then the person originally designated by the non-encumbering Member shall serve as the appraiser; provided, further, that if the appraisers appointed by each of the Members fail to appoint commitment will create in a third qualified independent appraiser within 5 days after the appointment of the last of them, then an appraiser shall be appointed by party a judge of a court of competent jurisdiction security interest in the state in which the Assets are situated upon the application of Products or proceeds therefrom prior to any Membersuch distribution; and
(iii) The charge shall be subordinate to any then-existing debt, including any Project Financing previously approved by the Management Committee, encumbering the transferring Member’s Ownership Interest.
(h) Any Member may If a Transfer all of its Ownership Interest is made which is contrary to an Affiliate, provided that any relevant Parent Guarantee remains in effect, the Affiliate assumes all Section 15.2(b) and which causes termination of the transferor Member’s obligations hereunder and arrangements reasonably satisfactory to the non-transferring Members shall have been made to avoid any negative effect on any Permits. Any Member may Transfer Company as a portion of its Ownership Interest to an Affiliate, provided that any relevant Parent Guaranty remains in effectpartnership for Federal income tax purposes, the transferring Member shall be indemnify, defend and hold harmless the agent for the transferee other Member and both the transferor its Affiliates from and transferee shall act in common as if they were a single Member for against any and all purposes hereunder and loss, cost, expense or damage arising from such partial Transfer shall have been conducted in a manner to avoid any negative effect on any Permitstermination.
(i) No Transfer of an Ownership Interest shall be permitted to be made over an established securities market or in other circumstances which would cause the Company to be treated as a "publicly traded partnership" for United States federal income tax purposes.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Contango ORE, Inc.)
Limitations on Free Transferability. Any In addition to being subject to preemptive rights as described in Section 7.4 and Exhibit H, any Transfer by any either Member under Section 7.1 shall be subject to the following limitations:
(a) No Member shall Transfer any legal or beneficial right, title or interest (i) in or to the Company, the Properties or the Assets, or (ii) arising under this Agreement or the Members Agreement (including, but not limited to, any royalty, profits, or other interest in the Company Products) except in conjunction with the Transfer of part or all of its Ownership Interest (provided that such restriction shall not apply to any NSR interest held by a former Member subsequent to its resignation or withdrawal from the Company and in an amount or percentage equal to such transferred the relinquishment of its entire Ownership Interest.);
(b) So long as TSHI has not recovered all of the Recoupment Amount pursuant to Section 4.5 and so long as any Elected Loan or Demand Loan to TSVLP is outstanding, TSVLP shall not Transfer any interest in its Ownership Interest unless and until the transferee has executed and delivered a written subrogation agreement in favor of TSHI and the Company by which the Transferee assumes and becomes subject to all of the obligations, loans, defects, Liens and Encumbrances affecting TSVLP, its Ownership Interest or its rights under this Agreement or the Members Agreement in a form approved by TSHI. No transferee of all or any part of a Member’s Members Ownership Interest shall have the rights of a Member unless and until the transferring Member has provided to the other Members Member notice of the Transfer, and, except as provided in Subsections 7.2(f) and 7.2(g), the transferee, as of the effective date of the Transfer, has committed in writing to assume and be bound by this Agreement and the Members Agreement to the same extent as the transferring Member.;
(c) No Member Neither Member, without the consent of the other Member, shall make a Transfer that shall violate violates any Law, or result results in the cancellation of any Permitspermits, licenses licenses, or other similar authorization, unless the effect of such Transfer shall have been made known to the other Members and the other Members shall have consented thereto. Without limiting the generality of the foregoing, no Member shall effect any Transfer that shall require approval by any Governmental Authority unless such approval shall have been obtained at such transferring Member’s sole cost and expense.;
(d) No Transfer permitted by this Article shall relieve the transferring Member of any liability of such transferring Member under this Agreement to or under the extent arising from and relating to periods Members Agreement , whether accruing before or after such Transfer.;
(e) Any Member that makes a Transfer that shall cause termination of the tax partnership established by Section 5.2 shall indemnify the other Members Member for, from and against any and all loss, cost, expense, damage, liability or claim therefore arising from the Transfer, including without limitation any increase in taxes, interest and penalties or decrease in credits caused by such termination and any tax on indemnification proceeds received by the indemnified Members.Member;
(f) In the event of a Transfer of less than all of an Ownership Interest, the transferring Member and its transferee shall act and be treated as one Member under this Agreement; provided however, that in order for such Transfer to be effective, the transferring Member and its transferee must first: :
(i) agree, as between themselves, that one of them is authorized to act as the sole agent (“Agent”) on their behalf with respect to all matters pertaining to this Agreement, the Members Agreement and the Company; and and
(ii) notify provide written notice to the other Members Member, the Manager and the Company of the designation of the Agent, and in such notice warrant and represent to the other Members Member, the Manager and the Company that: :
(A) the Agent has the sole authority to act on behalf of, and to bind, the transferring Member and its transferee with respect to all matters pertaining to this Agreement, the Members Agreement and the Company; ;
(B) the other Members Member, the Manager and the Company may rely on all decisions of, notices and other communications from, and failures to respond by, the Agent, as if given (or not given) by the transferring Member and its transferee; and and
(C) all decisions of, notices and other communications from, and failures to respond by, the other Members Member , the Manager or the Company to the Agent shall be deemed to have been given (or not given) to the transferring Member and its transferee. The transferring Member and its transferee may change the Agent (but such replacement must be one of them) by giving written notice to the other MembersMember, the Manager and the Company, which notice must conform to Section 9.2(f)(iiSubsection 7.2(f)(ii).
(g) Without the unanimous consent of the Members, no Transfer consisting of the direct or indirect grant of an Encumbrance on an Ownership Interest of a Member shall be effected except that any Transfer consisting of the grant of an Encumbrance on an Ownership Interest shall be permitted to secure a loan or other indebtedness of a Member in a bona fide transaction in connection with such Member’s financing of payment or performance of such Member’s obligations under this Agreement, provided that such Transfer shall be subject to the terms of this Agreement and the rights and interests of the other Members hereunder. Any such Encumbrance shall be further subject to the condition that the holder of such Encumbrance (“Chargee”) first enters into a written agreement with the other Members in form satisfactory to the other Members, acting reasonably, binding upon the Chargee, to the effect that:
(i) The Chargee TSVLP shall not enter into possession grant any Encumbrance or institute allow any proceedings for foreclosure Lien to arise on or partition of the encumbering Member’s Ownership Interest and that such Encumbrance shall be subject with respect to the provisions of this Agreement;
(ii) The Chargee’s remedies under the Encumbrance shall be limited to the sale of the whole (but only of the whole) of the encumbering Member’s Ownership Interest to the other Members, or, failing such a sale, at a public auction to be held at least 30 days after prior notice to the other Members, such sale to be subject to the purchaser entering into a written agreement with the other Members whereby such purchaser assumes all obligations of the encumbering Member under the terms of this Agreement. The price of any preemptive sale to the other Member shall be the fair market value (as determined below) of the Ownership Interest securing the Encumbrance, and such preemptive sale shall occur within 60 days of the Chargee’s notice to the other Members of its intent to sell the encumbering Member’s Ownership Interest. Failure of a sale to the other Members to close by the end of such period, unless failure is caused by the encumbering Member or by the Chargee, shall permit the Chargee to sell the encumbering Member’s Ownership Interest at a public sale. Fair market value shall be determined by a qualified independent appraiser appointed by the non-encumbering Members. If the encumbering Member conveys notice of objection to the person so appointed within 10 days after receiving notice thereof, then an independent and qualified appraiser shall be appointed by the joint action of the appraiser appointed by the non-encumbering Members and a qualified independent appraiser appointed by the encumbering Member; provided that if the encumbering Member fails to designate a qualified independent appraiser for such purpose within 10 days after giving notice of such objection, then the person originally designated by the non-encumbering Member shall serve as the appraiser; provided, further, that if the appraisers appointed by each of the Members fail to appoint a third qualified independent appraiser within 5 days after the appointment of the last of them, then an appraiser shall be appointed by a judge of a court of competent jurisdiction in the state in which the Assets are situated upon the application of any Member; and
(iii) The charge shall be subordinate to any then-existing debt, including any Project Financing previously approved by the Management Committee, encumbering the transferring Member’s Ownership Interest.
(h) Any Member may Transfer all of its Ownership Interest to an Affiliate(or any other right, provided that any relevant Parent Guarantee remains in effecttitle or interest of TSVLP arising under this Agreement or the Members Agreement), except for Encumbrances authorized by this Agreement or the Affiliate assumes all of the transferor Member’s obligations hereunder and arrangements reasonably satisfactory to the non-transferring Members shall have been made to avoid any negative effect on any Permits. Any Member may Transfer a portion of its Ownership Interest to an Affiliate, provided that any relevant Parent Guaranty remains in effect, the transferring Member shall be the agent for the transferee and both the transferor and transferee shall act in common as if they were a single Member for all purposes hereunder and such partial Transfer shall have been conducted in a manner to avoid any negative effect on any PermitsAgreement.
(i) No Transfer of an Ownership Interest shall be permitted to be made over an established securities market or in other circumstances which would cause the Company to be treated as a "publicly traded partnership" for United States federal income tax purposes.
Appears in 1 contract
Sources: Members Agreement (U S Gold Corp)
Limitations on Free Transferability. Any Transfer by any Member either Participant under Section 16.1 shall be subject to the following limitations:
(a) No Member Neither Participant shall Transfer any beneficial interest in this Agreement or the Assets (including, but not limited to, any royalty, profits, or other interest in the Company Products) except in conjunction with the Transfer of part or all of its Ownership Interest and in an amount or percentage equal to such transferred Ownership Participating Interest.;
(b) No transferee of all or any part of a Member’s Ownership Participant's Participating Interest shall have the rights of a Member Participant unless and until the transferring Member Participant has provided to the other Members Participant notice of the Transfer, and, except as provided in Subsections and 16.2(g) , the transferee, as of the effective date of the Transfer, has committed in writing to assume and be bound by this Agreement to the same extent as the transferring Member.Participant;
(c) No Member Neither Participant, without the consent of the other Participant, shall make a Transfer that shall violate any Law, or result in the cancellation of any Permitspermits, licenses licenses, or other similar authorization, unless the effect of such Transfer shall have been made known to the other Members and the other Members shall have consented thereto. Without limiting the generality of the foregoing, no Member shall effect any Transfer that shall require approval by any Governmental Authority unless such approval shall have been obtained at such transferring Member’s sole cost and expense.;
(d) No Transfer permitted by this Article XVI shall relieve the transferring Member Participant of its share of any liability of such transferring Member under this Agreement to the extent arising from and relating to periods liability, whether accruing before or after such Transfer., which arises out of Operations conducted prior to such Transfer or exists on the Effective Date;
(e) Any Member that makes Neither Participant, without the consent of the other Participant, shall make a Transfer that shall cause termination of the tax partnership established by Section 4.2 . If such termination is caused, the transferring Participant shall indemnify the other Members Participant for, from and against any and all loss, cost, expense, damage, liability or claim therefore arising from the Transfer, including without limitation any increase in taxes, interest and penalties or decrease in credits caused by such termination and any tax on indemnification proceeds received by the indemnified MembersIndemnified Participant.
(f) In the event of a Transfer of less than all of an Ownership a Participating Interest, the transferring Member Participant and its transferee shall act and be treated as one Member under this AgreementParticipant; provided however, that in order for such Transfer to be effective, the transferring Member Participant and its transferee must first: :
(i) agree, as between themselves, that one of them is authorized to act as the sole agent (“"Agent”") on their behalf with respect to all matters pertaining to this Agreement and the CompanyVenture; and and
(ii) notify the other Members Participant of the designation of the Agent, and in such notice warrant and represent to the other Members Participant that: :
(A) the Agent has the sole authority to act on behalf of, and to bind, the transferring Member Participant and its transferee with respect to all matters pertaining to this Agreement and the Company; Venture;
(B) the other Members Participant may rely on all decisions of, notices and other communications from, and failures to respond by, the Agent, as if given (or not given) by the transferring Member Participant and its transferee; and and
(C) all decisions of, notices and other communications from, and failures to respond by, the other Members Participant to the Agent shall be deemed to have been given (or not given) to the transferring Member Participant and its transferee. The transferring Member Participant and its transferee may change the Agent (but such replacement must be one of them) by giving notice Notice to the other MembersParticipant, which notice Notice must conform to Section 9.2(f)(ii)Subsection 16.2(f)(ii) .
(g) Without If the unanimous consent of the Members, no Transfer consisting of the direct or indirect grant of an Encumbrance on an Ownership Interest of a Member shall be effected except that any Transfer consisting of is the grant of an Encumbrance on an Ownership in a Participating Interest shall be permitted to secure a loan or other indebtedness of a Member either Participant in a bona fide transaction, other than a transaction approved unanimously by the Management Committee or Project Financing approved by the Management Committee, such Encumbrance shall be granted only in connection with such Member’s Participant's financing of payment or performance of such Member’s that Participant's obligations under this Agreement, provided that such Transfer Agreement and shall be subject to the terms of this Agreement and the rights and interests of the other Members hereunderParticipant hereunder (including without limitation under Section 6.7 ). Any such Encumbrance shall be further subject to the condition that the holder of such Encumbrance (“"Chargee”") first enters enter into a written agreement with the other Members Participant in form satisfactory to the other MembersParticipant, acting reasonably, binding upon the Chargee, to the effect that:
(i) The the Chargee shall not enter into possession or institute any proceedings for foreclosure or partition of the encumbering Member’s Ownership Participant's Participating Interest and that such Encumbrance shall be subject to the provisions of this Agreement;
(ii) The the Chargee’s 's remedies under the Encumbrance shall be limited to the sale of the whole (but only of the whole) of the encumbering Member’s Ownership Participant's Participating Interest to the other MembersParticipant, or, failing such a sale, at a public auction to be held at least 30 forty-five( 45) days after prior notice to the other MembersParticipant, such sale to be subject to the purchaser entering into a written agreement with the other Members Participant whereby such purchaser assumes all obligations of the encumbering Member Participant under the terms of this Agreement. The price of any preemptive sale to the other Member Participant shall be the fair market value (as determined below) remaining principal amount of the Ownership Interest securing the Encumbranceloan plus accrued interest and related expenses, and such preemptive sale shall occur within 60 sixty (60) days of the Chargee’s notice 's Notice to the other Members Participant of its intent to sell the encumbering Member’s Ownership Participant's Participating Interest. Failure of a sale to the other Members Participant to close by the end of such period, unless failure is caused by the encumbering Member Participant or by the Chargee, shall permit the Chargee to sell the encumbering Member’s Ownership Participant's Participating Interest at a public sale. Fair market value shall be determined by a qualified independent appraiser appointed by the non-encumbering Members. If the encumbering Member conveys notice of objection to the person so appointed within 10 days after receiving notice thereof, then an independent and qualified appraiser shall be appointed by the joint action of the appraiser appointed by the non-encumbering Members and a qualified independent appraiser appointed by the encumbering Member; provided that if the encumbering Member fails to designate a qualified independent appraiser for such purpose within 10 days after giving notice of such objection, then the person originally designated by the non-encumbering Member shall serve as the appraiser; provided, further, that if the appraisers appointed by each of the Members fail to appoint a third qualified independent appraiser within 5 days after the appointment of the last of them, then an appraiser shall be appointed by a judge of a court of competent jurisdiction in the state in which the Assets are situated upon the application of any Member; and
(iii) The the charge shall be subordinate to any then-existing debt, including any Project Financing previously approved by the Management Committee, encumbering the transferring Member’s Ownership Participant's Participating Interest.
(h) Any Member may Transfer all of its Ownership Interest to an Affiliate, provided that any relevant Parent Guarantee remains in effect, the Affiliate assumes all of the transferor Member’s obligations hereunder and arrangements reasonably satisfactory to the non-transferring Members shall have been made to avoid any negative effect on any Permits. Any Member may Transfer a portion of its Ownership Interest to an Affiliate, provided that any relevant Parent Guaranty remains in effect, the transferring Member shall be the agent for the transferee and both the transferor and transferee shall act in common as if they were a single Member for all purposes hereunder and such partial Transfer shall have been conducted in a manner to avoid any negative effect on any Permits.
(i) No Transfer of an Ownership Interest shall be permitted to be made over an established securities market or in other circumstances which would cause the Company to be treated as a "publicly traded partnership" for United States federal income tax purposes.;
Appears in 1 contract
Limitations on Free Transferability. Any Transfer by any either Member under Section 15.1 shall be subject to the following limitations:
(a) No Neither Member shall Transfer any beneficial interest in this Agreement or the Company (including, but not limited to, any royalty, profits, or other interest in the Company Products) except in conjunction with the Transfer of part or all of its Ownership Membership Interest and in an amount or percentage equal to such transferred Ownership Interest.the Company;
(b) No transferee of all or any part of a Member’s Ownership Membership Interest shall have the rights of a Member unless and until the transferring Member has provided to the other Members notice Member Notice of the Transfer, and, except as provided in Subsections and Subsection 15.2(g), the transferee, as of the effective date of the Transfer, has committed in writing to assume and be bound by this Agreement to the same extent as the transferring Member.;
(c) No Neither Member shall make a Transfer that shall violate any Law, or or, without the consent of the other Member, result in the cancellation of any Permitspermits, licenses licenses, or other similar authorization, unless the effect of such Transfer shall have been made known to the other Members and the other Members shall have consented thereto. Without limiting the generality of the foregoing, no Member shall effect any Transfer that shall require approval by any Governmental Authority unless such approval shall have been obtained at such transferring Member’s sole cost and expense.;
(d) No Transfer permitted by this Article XV shall relieve the transferring Member of its share of any liability of such transferring Member under this Agreement to the extent arising from and relating to periods liability, whether accruing before or after such Transfer., which arises out of Operations conducted prior to such Transfer or exists on the Effective Date;
(e) Any Member that makes Neither Member, without the consent of the other Member, shall make a Transfer that shall cause termination of the tax partnership established by Section 4.3. If such termination is caused, the transferring Member shall indemnify the other Members Member for, from and against any and all loss, cost, expense, damage, liability or claim therefore therefor arising from the Transfer, including without limitation any increase in taxes, interest and penalties or decrease in credits caused by such termination and any tax on indemnification proceeds received by the indemnified MembersIndemnified Party.
(f) In the event of a Transfer of less than all of an Ownership a Membership Interest, the transferring Member and its transferee shall act and be treated as one Member under this AgreementMember; provided however, that in order for such Transfer to be effective, the transferring Member and its transferee must first: :
(i) agree, as between themselves, that one of them is authorized to act as the sole agent (“Agent”) on their behalf with respect to all matters pertaining to this Agreement and the CompanyBusiness; and and
(ii) notify give Notice to the other Members Member of the designation of the Agent, and in such notice Notice warrant and represent to the other Members Member that: :
(A1) the Agent has the sole authority to act on behalf of, and to bind, the transferring Member and its transferee with respect to all matters pertaining to this Agreement , the Company and the Company; Business;
(B2) the other Members Member may rely on all decisions of, notices Notices and other communications from, and failures to respond by, the Agent, as if given (or not given) by the transferring Member and its transferee; and and
(C3) all decisions of, notices Notices and other communications from, and failures to respond by, the other Members Member to the Agent shall be deemed to have been given (or not given) to the transferring Member and its transferee. The transferring Member and its transferee may change the Agent (but such replacement must be one of them) by giving notice Notice to the other MembersMember, which notice Notice must conform to Section 9.2(f)(iiSubsection 15.2(f)(ii).
(g) Without If the unanimous consent of the Members, no Transfer consisting of the direct or indirect grant of an Encumbrance on an Ownership Interest of a Member shall be effected except that any Transfer consisting of is the grant of an Encumbrance on an Ownership in a Membership Interest shall be permitted to secure a loan or other indebtedness of a either Member in a bona fide transaction, other than a transaction approved unanimously by the Management Committee or Project Financing approved by the Management Committee, such Encumbrance shall be granted only in connection with such Member’s financing of payment or performance of such that Member’s obligations under this Agreement, provided that such Transfer Agreement and shall be subject to the terms of this Agreement and the rights and interests of the other Members hereunderMember hereunder (including without limitation under Section 5.15). Any such Encumbrance shall be further subject to the condition that the holder of such Encumbrance (“Chargee”) first enters enter into a written agreement with the Company and the other Members Member in form satisfactory to the Company and the other MembersParticipant, acting reasonably, binding upon the Chargee, to the effect that:
(i) The the Chargee shall not enter into possession or institute any proceedings for foreclosure or partition of the encumbering Member’s Ownership Membership Interest and that such Encumbrance shall be subject to the provisions of this Agreement;
(ii) The the Chargee’s remedies under the Encumbrance shall be limited to the sale of the whole (but only of the whole) of the encumbering Member’s Ownership Membership Interest to the other MembersMember, or, failing such a sale, at a public auction to be held at least 30 fourteen (14) days after prior notice to the Company and the other MembersMember, such sale to be subject to the purchaser entering into a written agreement with the Company and the other Members Member whereby such purchaser assumes all obligations of the encumbering Member under the terms of this Agreement. The price of any preemptive pre-emptive sale to the other Member shall be the fair market value (as determined below) remaining principal amount of the Ownership Interest securing the Encumbranceloan plus accrued interest and related expenses, and such preemptive pre-emptive sale shall occur within 60 sixty (60) days of the Chargee’s notice to the Company and the other Members Member of its intent to sell the encumbering Member’s Ownership Membership Interest. Failure of a sale to the other Members Member to close by the end of such period, unless failure is caused by the encumbering Member or by the Chargee, shall permit the Chargee to sell the encumbering Member’s Ownership Membership Interest at a public sale. Fair market value shall be determined by a qualified independent appraiser appointed by the non-encumbering Members. If the encumbering Member conveys notice of objection to the person so appointed within 10 days after receiving notice thereof, then an independent and qualified appraiser shall be appointed by the joint action of the appraiser appointed by the non-encumbering Members and a qualified independent appraiser appointed by the encumbering Member; provided that if the encumbering Member fails to designate a qualified independent appraiser for such purpose within 10 days after giving notice of such objection, then the person originally designated by the non-encumbering Member shall serve as the appraiser; provided, further, that if the appraisers appointed by each of the Members fail to appoint a third qualified independent appraiser within 5 days after the appointment of the last of them, then an appraiser shall be appointed by a judge of a court of competent jurisdiction in the state in which the Assets are situated upon the application of any Member; and
(iii) The the charge shall be subordinate to any then-existing debt, including any Project Financing previously approved by the Management Committee, encumbering the transferring Member’s Ownership Interest.
(h) Any Member may Transfer all of its Ownership Membership Interest to an Affiliate, provided that any relevant Parent Guarantee remains in effect, the Affiliate assumes all of the transferor Member’s obligations hereunder and arrangements reasonably satisfactory to the non-transferring Members shall have been made to avoid any negative effect on any Permits. Any Member may Transfer a portion of its Ownership Interest to an Affiliate, provided that any relevant Parent Guaranty remains in effect, the transferring Member shall be the agent for the transferee and both the transferor and transferee shall act in common as if they were a single Member for all purposes hereunder and such partial Transfer shall have been conducted in a manner to avoid any negative effect on any Permits.
(i) No Transfer of an Ownership Interest shall be permitted to be made over an established securities market or in other circumstances which would cause the Company to be treated as a "publicly traded partnership" for United States federal income tax purposes.Company;
Appears in 1 contract
Sources: Exploration, Development & Mine Operating Agreement (Crosshair Exploration & Mining Corp)