Limitations on Free Transferability. Any Transfer by either Member under Section 7.1 shall be subject to the following limitations: 7.2.1 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; 7.2.2 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 Member notice of the Transfer, and, except as provided in Sections 7.2.6 and 7.2.7, 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; 7.2.3 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 permits, licenses, or other similar authorization; 7.2.4 No Transfer permitted by this Section shall relieve the transferring Member of any liability of such transferring Member under this Agreement, whether accruing before or after such Transfer; 7.2.5 Any Member that makes a Transfer that shall cause termination of the tax partnership established by Section 5.2 shall indemnify the other 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 Member; 7.2.6 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: 7.2.6.1 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 7.2.6.2 Notify the other Member of the designation of the Agent, and in such notice warrant and represent to the other Member that: 7.2.6.2.1 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; 7.2.6.2.2 The other 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 7.2.6.2.3 All decisions of, notices and other communications from, and failures to respond by, the other 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 Member, which notice must conform to Section 7.2.6.2. 7.2.7 If the Transfer is the grant of an Encumbrance on an Ownership Interest to secure a loan or other indebtedness of 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 payment or performance of that Member’s obligations under this Agreement and shall be subject to the terms of this Agreement and the rights and interests of the other Member hereunder. Any such Encumbrance shall be further subject to the condition that the holder of such Encumbrance (AChargee@) first enters into a written agreement with the other Member in form satisfactory to the other Member, acting reasonably, binding upon the Chargee, to the effect that: 7.2.7.1 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; 7.2.7.2 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 Member, or, failing such a sale, at a public auction to be held at least thirty (30) days after prior notice to the other Member, such sale to be subject to the purchaser entering into a written agreement with the other 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 remaining principal amount of the loan plus accrued interest and related expenses, and such preemptive sale shall occur within sixty (60) days of the Chargee’s notice to the other Member of its intent to sell the encumbering Member’s Ownership Interest. Failure of a sale to the other 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; and 7.2.7.3 The charge shall be subordinate to any then-existing debt, including Project Financing previously approved by the Management Committee, encumbering the transferring Member’s Ownership Interest.
Appears in 1 contract
Limitations on Free Transferability. Any Transfer by either Member under Section SECTION 7.1 shall be subject to the following limitations:
7.2.1 (a) 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;
7.2.2 (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 Member notice of the Transfer, and, except as provided in Sections 7.2.6 SUBSECTIONS 7.2(F) and 7.2.77.2(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;
7.2.3 (c) 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 permits, licenses, or other similar authorization;
7.2.4 (d) No Transfer permitted by this Section Article shall relieve the transferring Member of any liability of such transferring Member under this Agreement, whether accruing before or after such Transfer;
7.2.5 (e) Any Member that makes a Transfer that shall cause termination of the tax partnership established by Section SECTION 5.2 shall indemnify the other 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 Member;
7.2.6 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:
7.2.6.1 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
7.2.6.2 Notify the other Member of the designation of the Agent, and in such notice warrant and represent to the other Member that:
7.2.6.2.1 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;
7.2.6.2.2 The other 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
7.2.6.2.3 All decisions of, notices and other communications from, and failures to respond by, the other 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 Member, which notice must conform to Section 7.2.6.2.
7.2.7 If the Transfer is the grant of an Encumbrance on an Ownership Interest to secure a loan or other indebtedness of 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 payment or performance of that Member’s obligations under this Agreement and shall be subject to the terms of this Agreement and the rights and interests of the other Member hereunder. Any such Encumbrance shall be further subject to the condition that the holder of such Encumbrance (AChargee@) first enters into a written agreement with the other Member in form satisfactory to the other Member, acting reasonably, binding upon the Chargee, to the effect that:
7.2.7.1 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;
7.2.7.2 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 Member, or, failing such a sale, at a public auction to be held at least thirty (30) days after prior notice to the other Member, such sale to be subject to the purchaser entering into a written agreement with the other 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 remaining principal amount of the loan plus accrued interest and related expenses, and such preemptive sale shall occur within sixty (60) days of the Chargee’s notice to the other Member of its intent to sell the encumbering Member’s Ownership Interest. Failure of a sale to the other 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; and
7.2.7.3 The charge shall be subordinate to any then-existing debt, including Project Financing previously approved by the Management Committee, encumbering the transferring Member’s Ownership Interest.
Appears in 1 contract
Sources: Members' Agreement (Battle Mountain Gold Exploration Corp.)
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 either any Member under Section 7.1 shall be subject to the following limitations:
7.2.1 Neither (a) No Member shall Transfer any legal or beneficial right, title or interest (i) in or to the Company 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 Products) except in each case conjunction with the Transfer of part or all of its Ownership Interest);
7.2.2 (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 Member Member(s) notice of the Transfer, and, except as provided in Sections 7.2.6 Subsections 7.2(f) and 7.2.77.2(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;
7.2.3 Neither (c) No Member, without the consent of the other MemberMember(s), shall make a Transfer that shall violate violates any Law, or result results in the cancellation of any permits, licenses, or other similar authorization;
7.2.4 (d) No Transfer permitted by this Section Article shall relieve the transferring Member Member(s) of any liability of such transferring Member Member(s) under this Agreement or under the Members' Agreement, whether accruing before or after such Transfer;
7.2.5 (e) Any Member Member(s) that makes a Transfer that shall cause termination of the tax partnership established by Section 5.2 shall indemnify the other Member Member(s) 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 MemberMember(s);
7.2.6 (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:
7.2.6.1 Agree(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
7.2.6.2 Notify (ii) provide written notice to the other Member Member(s), the Manager and the Company of the designation of the Agent, and in such notice warrant and represent to the other Member Member(s), the Manager and the Company that:
7.2.6.2.1 The (A) the Agent has the sole authority to act on behalf of, and to bind, the transferring Member Member(s) and its transferee with respect to all matters pertaining to this Agreement, the Members' Agreement and the Company;
7.2.6.2.2 The (B) the other Member Member(s), 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 Member(s) and its transferee; and
7.2.6.2.3 All (C) all decisions of, notices and other communications from, and failures to respond by, the other Member Member(s), the Manager or the Company to the Agent shall be deemed to have been given (or not given) to the transferring Member Member(s) and its transferee. The transferring Member Member(s) and its transferee may change the Agent (but such replacement must be one of them) by giving written notice to the other MemberMember(s), the Manager and the Company, which notice must conform to Section 7.2.6.27.2(f)(ii).
7.2.7 If the Transfer is the (g) No Member shall grant of an any Encumbrance or allow any Lien to arise on an or with respect to its respective Ownership Interest to secure a loan (or any other indebtedness of either Member in a bona fide transactionright, other than a transaction approved unanimously by the Management Committee title or Project Financing approved by the Management Committee, such Encumbrance shall be granted only in connection with such Member’s financing payment or performance of that Member’s obligations interest arising under this Agreement and shall be subject to or the terms of Members' Agreement), except for Encumbrances authorized by this Agreement and or the rights and interests of the other Member hereunder. Any such Encumbrance shall be further subject to the condition that the holder of such Encumbrance (AChargee@) first enters into a written agreement with the other Member in form satisfactory to the other Member, acting reasonably, binding upon the Chargee, to the effect that:
7.2.7.1 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 Members' Agreement;
7.2.7.2 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 Member, or, failing such a sale, at a public auction to be held at least thirty (30) days after prior notice to the other Member, such sale to be subject to the purchaser entering into a written agreement with the other 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 remaining principal amount of the loan plus accrued interest and related expenses, and such preemptive sale shall occur within sixty (60) days of the Chargee’s notice to the other Member of its intent to sell the encumbering Member’s Ownership Interest. Failure of a sale to the other 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; and
7.2.7.3 The charge shall be subordinate to any then-existing debt, including Project Financing previously approved by the Management Committee, encumbering the transferring Member’s Ownership Interest.
Appears in 1 contract
Sources: Operating Agreement (U S Gold Corp)
Limitations on Free Transferability. Any Transfer by either Member under Section 7.1 shall be subject to the following limitations:
7.2.1 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;
7.2.2 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 Member notice of the Transfer, and, except as provided in Sections 7.2.6 and 7.2.7, 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;
7.2.3 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 permits, licenses, or other similar authorization;
7.2.4 No Transfer permitted by this Section shall relieve the transferring Member of any liability of such transferring Member under this Agreement, whether accruing before or after such Transfer;
7.2.5 Any Member that makes a Transfer that shall cause termination of the tax partnership established by Section 5.2 shall indemnify the other 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 Member;
7.2.6 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:
7.2.6.1 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
7.2.6.2 Notify the other Member of the designation of the Agent, and in such notice warrant and represent to the other Member that:
7.2.6.2.1 (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;
7.2.6.2.2 (b) The other 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
7.2.6.2.3 (c) All decisions of, notices and other communications from, and failures to respond by, the other 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 Member, which notice must conform to Section 7.2.6.2.
7.2.7 If the Transfer is the grant of an Encumbrance on an Ownership Interest to secure a loan or other indebtedness of 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 payment or performance of that Member’s obligations under this Agreement and shall be subject to the terms of this Agreement and the rights and interests of the other Member hereunder. Any such Encumbrance shall be further subject to the condition that the holder of such Encumbrance (AChargee@“Chargee”) first enters into a written agreement with the other Member in form satisfactory to the other Member, acting reasonably, binding upon the Chargee, to the effect that:
7.2.7.1 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;
7.2.7.2 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 Member, or, failing such a sale, at a public auction to be held at least thirty (30) days after prior notice to the other Member, such sale to be subject to the purchaser entering into a written agreement with the other 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 remaining principal amount of the loan plus accrued interest and related expenses, and such preemptive sale shall occur within sixty (60) days of the Chargee’s notice to the other Member of its intent to sell the encumbering Member’s Ownership Interest. Failure of a sale to the other 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; and
7.2.7.3 The charge shall be subordinate to any then-existing debt, including Project Financing previously approved by the Management Committee, encumbering the transferring Member’s Ownership Interest.
Appears in 1 contract
Sources: Securities Purchase Agreement (American International Ventures Inc /De/)
Limitations on Free Transferability. Any Transfer by either Member under Section 7.1 shall be subject to the following limitations:
7.2.1 (a) 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;
7.2.2 (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 Member notice of the Transfer, and, except as provided in Sections 7.2.6 Subsections 7.2(f) and 7.2.77.2(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;
7.2.3 (c) 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 permits, licenses, or other similar authorization;
7.2.4 (d) No Transfer permitted by this Section Article shall relieve the transferring Member of any liability of such transferring Member under this Agreement, whether accruing before or after such Transfer, provided that to the extent ISGC Transfers its interest to a special-purpose Affiliate of ISGC to align the benefits of its Ownership Interest with the proper EB-5 fund, ISGC’s liability following such transfer shall be limited to (i) any obligations accruing prior to the date of transfer, and (ii) guaranteeing the Affiliate’s obligation to make any future capital contributions to the Company as and when due under this Agreement;
7.2.5 (e) Any Member that makes a Transfer that shall cause termination of the tax partnership established by Section 5.2 shall indemnify indemnify, defend and hold the other 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 Member;.
7.2.6 (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:
7.2.6.1 Agree(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
7.2.6.2 Notify (ii) notify the other Member of the designation of the Agent, and in such notice warrant and represent to the other Member that:
7.2.6.2.1 The (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;
7.2.6.2.2 The (B) the other 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
7.2.6.2.3 All (C) all decisions of, notices and other communications from, and failures to respond by, the other 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 Member, which notice must conform to Section 7.2.6.2Subsection 7.2(f)(ii).
7.2.7 (g) If the Transfer is the grant of an Encumbrance on an Ownership Interest to secure a loan or other indebtedness of 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 payment or performance of that Member’s obligations under this Agreement and shall be subject to the terms of this Agreement and the rights and interests of the other Member hereunder. Any such Encumbrance shall be further subject to the condition that the holder of such Encumbrance (AChargee@“Chargee”) first enters into a written agreement with the other Member in form satisfactory to the other Member, acting reasonably, binding upon the Chargee, to the effect that:
7.2.7.1 The (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;
7.2.7.2 The (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 Member, or, failing such a sale, at a public auction to be held at least thirty ninety (30) days 90)days after prior notice to the other Member, such sale to be subject to the purchaser entering into a written agreement with the other 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 remaining principal amount of the loan plus accrued interest and related expenses, and such preemptive sale shall occur within sixty (60) days of the Chargee’s notice to the other Member of its intent to sell the encumbering Member’s Ownership Interest. Failure of a sale to the other 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; and
7.2.7.3 The (iii) the charge shall be subordinate to any then-existing debt, including Project Financing previously approved by the Management Committee, encumbering the transferring Member’s Ownership Interest.
Appears in 1 contract
Limitations on Free Transferability. Any Transfer by either Member under Section 7.1 shall be subject to the following limitations:
7.2.1 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;
7.2.2 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 Member notice of the Transfer, and, except as provided in Sections 7.2.6 and 7.2.7, 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;
7.2.3 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 permits, licenses, or other similar authorization;
7.2.4 No Transfer permitted by this Section shall relieve the transferring Member of any liability of such transferring Member under this Agreement, whether accruing before or after such Transfer;
7.2.5 Any Member that makes a Transfer that shall cause termination of the tax partnership established by Section 5.2 shall indemnify the other 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 Member;
7.2.6 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:
7.2.6.1 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
7.2.6.2 Notify the other Member of the designation of the Agent, and in such notice warrant and represent to the other Member that:
7.2.6.2.1 (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;
7.2.6.2.2 (b) The other 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
7.2.6.2.3 (c) All decisions of, notices and other communications from, and failures to respond by, the other 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 Member, which notice must conform to Section 7.2.6.2.
7.2.7 If the Transfer is the grant of an Encumbrance on an Ownership Interest to secure a loan or other indebtedness of 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 's financing payment or performance of that Member’s 's obligations under this Agreement and shall be subject to the terms of this Agreement and the rights and interests of the other Member hereunder. Any such Encumbrance shall be further subject to the condition that the holder of such Encumbrance (AChargee@"Chargee") first enters into a written agreement with the other Member in form satisfactory to the other Member, acting reasonably, binding upon the Chargee, to the effect that:
7.2.7.1 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;
7.2.7.2 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 's Ownership Interest to the other Member, or, failing such a sale, at a public auction to be held at least thirty (30) days after prior notice to the other Member, such sale to be subject to the purchaser entering into a written agreement with the other 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 remaining principal amount of the loan plus accrued interest and related expenses, and such preemptive sale shall occur within sixty (60) days of the Chargee’s 's notice to the other Member of its intent to sell the encumbering Member’s 's Ownership Interest. Failure of a sale to the other 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 's Ownership Interest at a public sale; and
7.2.7.3 The charge shall be subordinate to any then-existing debt, including Project Financing previously approved by the Management Committee, encumbering the transferring Member’s 's Ownership Interest.
Appears in 1 contract