Restrictions on Transfers of Membership Interests. (i) Subject to Sections 9(j), 23, and this Section 21 and any transfer restrictions in the Loan Documents and that certain Pledge and Security Agreement to be delivered by the Economic Member in favor of Mezzanine A Lender following the date hereof (the “Mezzanine A Pledge Agreement”), no Member shall Transfer any Membership Interests now or hereafter held, other than in accordance with the terms of this Agreement, the Transfer Restriction Agreement and the Loan Documents. Any Transfer or purported Transfer made in violation of this Agreement or the Transfer Restriction Agreement shall be null and void and of no effect. (ii) Notwithstanding anything to the contrary expressed or implied in this Agreement, the Transfer of any interest in the Company is ineffective unless approved in advance by the Commission. The Membership Interests owned or controlled by an Unsuitable Person or an Affiliate of an Unsuitable Person (an “Unsuitable Member”), shall be subject to redemption by the Company, out of funds legally available therefor, by action of the Board, to the extent required by the Gaming Authority making the determination of unsuitability or to the extent deemed necessary or advisable by the Board. If a Gaming Authority requires the Company, or the Board deems it necessary or advisable, to redeem any Membership Interests, the Company shall give a Redemption Notice to the Unsuitable Member and shall purchase the Membership Interests on the Redemption Date. From and after the Redemption Date, such Membership Interests shall no longer be deemed to be outstanding, such Unsuitable Member shall cease to be a Member, and all rights of the Unsuitable Member herein, other than the right to receive the Redemption Price, shall cease. The Unsuitable Member shall surrender any certificates representing the Membership Interests to be redeemed in accordance with the requirements of the Redemption Notice. (iii) Commencing on the date that a Gaming Authority serves notice of a determination of unsuitability or the Board determines that a Person is an Unsuitable Person, and until the Membership Interests owned or controlled by such Person are owned or controlled by a Person who is not an Unsuitable Person, the Unsuitable Member shall not be entitled (i) to receive any distribution or interest with regard to the Membership Interest; (ii) to exercise, directly or indirectly or through any proxy, trustee, or nominee, any voting or other right conferred by such Membership Interest, and such Membership Interest shall not for any purposes be included in the Percentage Interests entitled to vote, or (iii) to receive any remuneration in any form from the Company or any Affiliate of the Company for services rendered or otherwise. (iv) All notices given by the Company pursuant to this Section 21, including Redemption Notices, shall be in writing and may be given by mail, addressed to the Person at such Person’s address as it appears in the Company’s books and records, with postage thereon prepaid, and such notice shall be deemed given at the time deposited in the United States mail. Written notice may also be given personally or by telegram, facsimile, telex, cable or e-mail, and such notice shall be deemed given at the time of receipt thereof, if given personally, or at the time of transmission thereof, if given by telegram, facsimile, telex, cable or e-mail. (v) Any Unsuitable Member shall, to the fullest extent permitted by law, indemnify and hold harmless the Company and its Affiliates for any and all losses, costs and expenses, including attorneys’ fees, incurred by the Company and its Affiliates as a result of, or arising out of, such Unsuitable Member’s continuing ownership or control of a Membership Interest, or its neglect, refusal or failure to comply with the provisions of this Section 21, or failure to promptly divest itself of any Membership Interest when required by the Gaming Laws or this Section 21. (vi) The Company is entitled to injunctive or other equitable relief in any court of competent jurisdiction to enforce the provisions of this Section 21 and each holder of the Membership Interests shall be deemed to have acknowledged, by acquiring the Membership Interest, that the failure to comply with this Section 21 will expose the Company to irreparable injury for which there is no adequate remedy at law and that the Company is entitled to injunctive relief to enforce the provisions of this Section 21. (vii) The Company’s right of redemption provided in this Section 21 shall not be exclusive of any other rights the Company may have under this Agreement or hereafter acquire under any other agreement or otherwise. (viii) Nothing contained in this Section 21 shall limit the authority of the Board to take such other action to the extent permitted by law as it deems necessary or advisable to protect the Company or its Affiliates from the denial or threatened denial or loss or threatened loss of any Gaming Approvals. Without limiting the generality of the foregoing, the Board may conform any provisions of this Section 21 to the extent necessary to make such provisions consistent with Gaming Laws. In addition, the Board may, to the extent permitted by law, from time to time establish, modify, amend or rescind regulations and procedures of the Company not inconsistent with the express provisions of this Section 21 for the purpose of determining whether any Person is an Unsuitable Person and for the orderly application, administration and implementation of the provisions of this Section 21. Such procedures and regulations shall be kept on file with the Company’s Secretary, and shall be made available for inspection by the public and, upon request, mailed to any Member. (ix) The Board shall have exclusive authority and power to administer this Section 21 and to exercise all rights and powers specifically granted to the Board or the Company hereunder, or as may be necessary or advisable in the administration of this Section 21. All such actions which are taken or made by the Board in good faith shall be final, conclusive and binding on the Company and all other Persons; provided, however, that the Board may delegate all or any portion of its duties and powers under this Section 21 to a committee as it deems necessary or advisable. In each case where a committee designated by the Board pursuant to the foregoing sentence must make a determination of price, manner of paying, unsuitability, or otherwise, such determination shall be made by a majority of the members of such committee not counting the vote of any committee member who is an Unsuitable Person or an Affiliate of an Unsuitable Person. (x) Except as may be required by any applicable Gaming Laws or a Gaming Authority, the Board may waive any of the rights of the Company or any restrictions contained in this Section 21 in any instance in which the Board determines that a waiver would be in the best interests of the Company. The Board may terminate any rights of the Company or restrictions set forth in this Section 21 to the extent that the Board determines that any such termination is in the best interests of the Company. Except as may be required by a Gaming Authority, nothing in this Section 21 shall be deemed or construed to require the Company to repurchase any Membership Interest owned or controlled by an Unsuitable Person or an Affiliate of an Unsuitable Person. (xi) To the extent the above provisions are complied with and subject to Section 9(j) and Section 23, and any transfer restrictions in the Loan Documents and the Mezzanine A Loan Documents, each Member may assign in whole or in part its limited liability company interest in the Company. Subject to Section 23, if a Member transfers all of its Membership Interests in the Company pursuant to this Section 21, the transferee shall be admitted to the Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Notwithstanding anything in this Agreement to the contrary, any successor to a Member by merger or consolidation in accordance with the Basic Documents and this Agreement shall, without further act, be a Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Nevada Property 1 LLC)
Restrictions on Transfers of Membership Interests. (i) Subject to Sections 9(j), 23, and this Except as provided in Section 21 and any transfer restrictions in the Loan Documents and that certain Pledge and Security Agreement to be delivered by the Economic Member in favor of Mezzanine A Lender following the date hereof (the “Mezzanine A Pledge Agreement”)12.2 hereof, no Member shall may Transfer any Membership Interests now or hereafter held, other than in accordance with the terms of this Agreement, the Transfer Restriction Agreement and the Loan Documents. Any Transfer or purported Transfer made in violation of this Agreement or the Transfer Restriction Agreement shall be null and void and of no effect.
(ii) Notwithstanding anything to the contrary expressed or implied in this Agreement, the Transfer of any interest in the Company is ineffective unless approved in advance by the Commission. The Membership Interests owned or controlled by an Unsuitable Person or an Affiliate of an Unsuitable Person (an “Unsuitable Member”), shall be subject to redemption by the Company, out of funds legally available therefor, by action of the Board, to the extent required by the Gaming Authority making the determination of unsuitability or to the extent deemed necessary or advisable by the Board. If a Gaming Authority requires the Company, or the Board deems it necessary or advisable, to redeem any Membership Interests, the Company shall give a Redemption Notice to the Unsuitable Member and shall purchase the Membership Interests on the Redemption Date. From and after the Redemption Date, such Membership Interests shall no longer be deemed to be outstanding, such Unsuitable Member shall cease to be a Member, and all rights of the Unsuitable Member herein, other than the right to receive the Redemption Price, shall cease. The Unsuitable Member shall surrender any certificates representing the Membership Interests to be redeemed in accordance with the requirements of the Redemption Notice.
(iii) Commencing on the date that a Gaming Authority serves notice of a determination of unsuitability or the Board determines that a Person is an Unsuitable Person, and until the Membership Interests owned or controlled by such Person are owned or controlled by a Person who is not an Unsuitable Person, the Unsuitable Member shall not be entitled (i) to receive any distribution or interest with regard to the Membership Interest; (ii) to exercise, directly or indirectly or through any proxy, trustee, or nominee, any voting or other right conferred by such Membership Interest, and such Membership Interest shall not for any purposes be included in the Percentage Interests entitled to vote, or (iii) to receive any remuneration in any form from the Company or any Affiliate of the Company for services rendered or otherwise.
(iv) All notices given by the Company pursuant to this Section 21, including Redemption Notices, shall be in writing and may be given by mail, addressed to the Person at such Person’s address as it appears in the Company’s books and records, with postage thereon prepaid, and such notice shall be deemed given at the time deposited in the United States mail. Written notice may also be given personally or by telegram, facsimile, telex, cable or e-mail, and such notice shall be deemed given at the time of receipt thereof, if given personally, or at the time of transmission thereof, if given by telegram, facsimile, telex, cable or e-mail.
(v) Any Unsuitable Member shall, to the fullest extent permitted by law, indemnify and hold harmless the Company and its Affiliates for any and all losses, costs and expenses, including attorneys’ fees, incurred by the Company and its Affiliates as a result of, or arising out of, such Unsuitable Member’s continuing ownership or control of a Membership Interest, or its neglect, refusal or failure to comply with the provisions of this Section 21, or failure to promptly divest itself of any Membership Interest when required by the Gaming Laws or this Section 21.
(vi) The Company is entitled to injunctive or other equitable relief in any court of competent jurisdiction to enforce the provisions of this Section 21 and each holder of the Membership Interests shall be deemed to have acknowledged, by acquiring the Membership Interest, that the failure to comply with this Section 21 will expose the Company to irreparable injury for which there is no adequate remedy at law and that the Company is entitled to injunctive relief to enforce the provisions of this Section 21.
(vii) The Company’s right of redemption provided in this Section 21 shall not be exclusive of any other rights the Company may have under this Agreement or hereafter acquire under any other agreement or otherwise.
(viii) Nothing contained in this Section 21 shall limit the authority of the Board to take such other action to the extent permitted by law as it deems necessary or advisable to protect the Company or its Affiliates from the denial or threatened denial or loss or threatened loss of any Gaming Approvals. Without limiting the generality of the foregoing, the Board may conform any provisions of this Section 21 to the extent necessary to make such provisions consistent with Gaming Laws. In addition, the Board may, to the extent permitted by law, from time to time establish, modify, amend or rescind regulations and procedures of the Company not inconsistent with the express provisions of this Section 21 for the purpose of determining whether any Person is an Unsuitable Person and for the orderly application, administration and implementation of the provisions of this Section 21. Such procedures and regulations shall be kept on file with the Company’s Secretary, and shall be made available for inspection by the public and, upon request, mailed to any Member.
(ix) The Board shall have exclusive authority and power to administer this Section 21 and to exercise all rights and powers specifically granted to the Board or the Company hereunder, or as may be necessary or advisable in the administration of this Section 21. All such actions which are taken or made by the Board in good faith shall be final, conclusive and binding on the Company and all other Persons; provided, however, that the Board may delegate all or any portion of its duties and powers under this Membership Interests, to any Person (other than pursuant to Section 21 12.1, (a), below, to a committee Person who at the time is already a Member of the Company) without obtaining the approval of the Class A Members, which approval or disapproval shall be in the Class A Member's Discretion. Any attempted Transfer of any Membership Interest, other than in strict accordance with this Article 12, shall be, and is hereby declared, null and void AB INITIO, and the purported Transferee shall not (a) be admitted as it deems necessary a Member, (b) be deemed to be an Assignee of the Membership Interests purported to be Transferred, or advisable(c) have any rights to share in Profits or Losses, to receive any distributions, or to receive any allocations of income, gain, loss, deduction or credit or other similar items with respect to the Membership Interests purported to be Transferred. In each case where Any Member who purports to effect a committee designated Transfer of Membership Interests without fully complying with the provisions of this Article 12 shall have breached his or her contractual obligations hereunder and shall be liable to the remaining Members for any damages caused thereby, including legal fees and other costs incurred by the Board pursuant Company and/or such other Members incident to or in any manner attributable to such noncomplying Transfer. If, notwithstanding the prohibition hereunder, applicable law requires that a Transfer of Membership Interests in breach of this Article 12 must be given effect, the Transferee of such noncomplying Transfer shall have only the rights of an Assignee, the Membership Interests so Transferred shall be subject to the foregoing sentence must make a determination repurchase provisions of priceSection 12.9 hereof, manner of paying, unsuitability, or otherwise, and shall also be subject to such determination shall be made by a majority of the members of such committee not counting the vote of any committee member who is an Unsuitable Person or an Affiliate of an Unsuitable Person.
(x) Except legal and equitable remedies as may be required by any applicable Gaming Laws or a Gaming Authority, the Board may waive any of the rights of available to the Company or any restrictions contained in this Section 21 in any instance in which and the Board determines that a waiver would be in the best interests of the Companyremaining Members. The Board may terminate any rights of the Company or restrictions set forth in this Section 21 to the extent Members acknowledge and understand that the Board determines that any such termination is in the best interests of the Company. Except as may be required by a Gaming Authority, nothing in this Section 21 shall be deemed or construed to require the Company to repurchase any Membership Interest owned or controlled by an Unsuitable Person or an Affiliate of an Unsuitable Person.
(xi) To the extent the above provisions are complied with and subject to Section 9(j) and Section 23, and any transfer restrictions in the Loan Documents and the Mezzanine A Loan Documents, each Member may assign in whole or in part its limited liability company interest in the Company. Subject to Section 23, if a Member transfers all of its Membership Interests in the Company pursuant to this Section 21cannot be readily purchased or sold in the open market, the transferee shall be admitted to the Company as a member and that each of the Company Members has entered into this Agreement in substantial reliance upon its execution the strict enforcement of an instrument signifying its agreement to be bound by the terms covenants and conditions of this Agreement. Because of such limited marketability of interests, which instrument such substantial reliance on the covenants and conditions hereof, and the unique relationship that exists among Members entering into a common business venture, among other reasons, it is expressly agreed and acknowledged that the Members will be irreparably damaged in the event that this Agreement is not specifically enforced. Should any dispute arise concerning the Transfer of Membership Interests, whether any such Transfer is being carried out or contemplated, an injunction may be a counterpart signature page to this Agreementissued restraining such Transfer pending the determination of such controversy. Such admission remedy shall, however, be cumulative and not exclusive, and shall be deemed effective immediately in addition to any other remedy which the parties may have.
(a) If a Class B Member ("Offeror") desires to sell all or a portion of its Class B Membership Interests to a Person, who prior to such sale is already a Class B Member ("Transferee"), then:
(1) The Offeror shall give MarkWest written notice (the transfer and, immediately following such admission, the transferor Member "Offer Notice") which shall cease to be include a member copy of the Company. Notwithstanding anything offer from the Transferee that the Offeror is willing to accept ("Purchase Offer") for the purchase of its interests (the "Offered Interest") and offer to sell the Offered Interest to MarkWest for the price contained in this Agreement the offer that such party is willing to the contrary, any successor to a Member by merger or consolidation accept ("Offer Price") and in accordance with the Basic Documents same terms as those contained in the Purchase Offer.
(2) The offer to MarkWest shall be irrevocable for a period ending at 5:00 p.m. Mountain Time on the thirtieth (30th) Day following the Day the Offer Notice is delivered (the "Offer Period").
(3) In the event that the offer to sell the Offered Interest is accepted by MarkWest, the closing date of the sale of the Offered Interest so accepted shall take place within thirty (30) days after the offer is accepted or, if later, the date of the closing set forth in the Purchase Offer. The Offeror and this Agreement shallMarkWest shall execute such documents and instruments as may be necessary or appropriate to effect the sale of the Offered Interest.
(4) If the offer is rejected, without further act, the Offeror may sell the Offered Interest so rejected to the Transferee identified in the Purchase Offer at any time within sixty (60) days after the last day of the Offer Period; provided that such sale shall be a Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and made on terms no more favorable to that Transferee than the Company shall continue without dissolution.terms contained in the Purchase Offer
Appears in 1 contract
Sources: Limited Liability Company Agreement (Markwest Energy Partners L P)
Restrictions on Transfers of Membership Interests. (i) Subject to Sections 9(j), 23, and this Except as provided in Section 21 and any transfer restrictions in the Loan Documents and that certain Pledge and Security Agreement to be delivered by the Economic Member in favor of Mezzanine A Lender following the date hereof (the “Mezzanine A Pledge Agreement”)12.2 hereof, no Member shall may Transfer any Membership Interests now or hereafter held, other than in accordance with the terms of this Agreement, the Transfer Restriction Agreement and the Loan Documents. Any Transfer or purported Transfer made in violation of this Agreement or the Transfer Restriction Agreement shall be null and void and of no effect.
(ii) Notwithstanding anything to the contrary expressed or implied in this Agreement, the Transfer of any interest in the Company is ineffective unless approved in advance by the Commission. The Membership Interests owned or controlled by an Unsuitable Person or an Affiliate of an Unsuitable Person (an “Unsuitable Member”), shall be subject to redemption by the Company, out of funds legally available therefor, by action of the Board, to the extent required by the Gaming Authority making the determination of unsuitability or to the extent deemed necessary or advisable by the Board. If a Gaming Authority requires the Company, or the Board deems it necessary or advisable, to redeem any Membership Interests, the Company shall give a Redemption Notice to the Unsuitable Member and shall purchase the Membership Interests on the Redemption Date. From and after the Redemption Date, such Membership Interests shall no longer be deemed to be outstanding, such Unsuitable Member shall cease to be a Member, and all rights of the Unsuitable Member herein, other than the right to receive the Redemption Price, shall cease. The Unsuitable Member shall surrender any certificates representing the Membership Interests to be redeemed in accordance with the requirements of the Redemption Notice.
(iii) Commencing on the date that a Gaming Authority serves notice of a determination of unsuitability or the Board determines that a Person is an Unsuitable Person, and until the Membership Interests owned or controlled by such Person are owned or controlled by a Person who is not an Unsuitable Person, the Unsuitable Member shall not be entitled (i) to receive any distribution or interest with regard to the Membership Interest; (ii) to exercise, directly or indirectly or through any proxy, trustee, or nominee, any voting or other right conferred by such Membership Interest, and such Membership Interest shall not for any purposes be included in the Percentage Interests entitled to vote, or (iii) to receive any remuneration in any form from the Company or any Affiliate of the Company for services rendered or otherwise.
(iv) All notices given by the Company pursuant to this Section 21, including Redemption Notices, shall be in writing and may be given by mail, addressed to the Person at such Person’s address as it appears in the Company’s books and records, with postage thereon prepaid, and such notice shall be deemed given at the time deposited in the United States mail. Written notice may also be given personally or by telegram, facsimile, telex, cable or e-mail, and such notice shall be deemed given at the time of receipt thereof, if given personally, or at the time of transmission thereof, if given by telegram, facsimile, telex, cable or e-mail.
(v) Any Unsuitable Member shall, to the fullest extent permitted by law, indemnify and hold harmless the Company and its Affiliates for any and all losses, costs and expenses, including attorneys’ fees, incurred by the Company and its Affiliates as a result of, or arising out of, such Unsuitable Member’s continuing ownership or control of a Membership Interest, or its neglect, refusal or failure to comply with the provisions of this Section 21, or failure to promptly divest itself of any Membership Interest when required by the Gaming Laws or this Section 21.
(vi) The Company is entitled to injunctive or other equitable relief in any court of competent jurisdiction to enforce the provisions of this Section 21 and each holder of the Membership Interests shall be deemed to have acknowledged, by acquiring the Membership Interest, that the failure to comply with this Section 21 will expose the Company to irreparable injury for which there is no adequate remedy at law and that the Company is entitled to injunctive relief to enforce the provisions of this Section 21.
(vii) The Company’s right of redemption provided in this Section 21 shall not be exclusive of any other rights the Company may have under this Agreement or hereafter acquire under any other agreement or otherwise.
(viii) Nothing contained in this Section 21 shall limit the authority of the Board to take such other action to the extent permitted by law as it deems necessary or advisable to protect the Company or its Affiliates from the denial or threatened denial or loss or threatened loss of any Gaming Approvals. Without limiting the generality of the foregoing, the Board may conform any provisions of this Section 21 to the extent necessary to make such provisions consistent with Gaming Laws. In addition, the Board may, to the extent permitted by law, from time to time establish, modify, amend or rescind regulations and procedures of the Company not inconsistent with the express provisions of this Section 21 for the purpose of determining whether any Person is an Unsuitable Person and for the orderly application, administration and implementation of the provisions of this Section 21. Such procedures and regulations shall be kept on file with the Company’s Secretary, and shall be made available for inspection by the public and, upon request, mailed to any Member.
(ix) The Board shall have exclusive authority and power to administer this Section 21 and to exercise all rights and powers specifically granted to the Board or the Company hereunder, or as may be necessary or advisable in the administration of this Section 21. All such actions which are taken or made by the Board in good faith shall be final, conclusive and binding on the Company and all other Persons; provided, however, that the Board may delegate all or any portion of its duties and powers under this Membership Interests, to any Person (other than pursuant to Section 21 12.1, (a), below, to a committee Person who at the time is already a Member of the Company) without obtaining the approval of the Class A Members, which approval or disapproval shall be in the Class A Member's Discretion. Any attempted Transfer of any Membership Interest, other than in strict accordance with this Article 12, shall be, and is hereby declared, null and void AB INITIO, and the purported Transferee shall not (a) be admitted as it deems necessary a Member, (b) be deemed to be an Assignee of the Membership Interests purported to be Transferred, or advisable(c) have any rights to share in Profits or Losses, to receive any distributions, or to receive any allocations of income, gain, loss, deduction or credit or other similar items with respect to the Membership Interests purported to be Transferred. In each case where Any Member who purports to effect a committee designated Transfer of Membership Interests without fully complying with the provisions of this Article 12 shall have breached his or her contractual obligations hereunder and shall be liable to the remaining Members for any damages caused thereby, including legal fees and other costs incurred by the Board pursuant Company and/or such other Members incident to or in any manner attributable to such noncomplying Transfer. If, notwithstanding the prohibition hereunder, applicable law requires that a Transfer of Membership Interests in breach of this Article 12 must be given effect, the Transferee of such noncomplying Transfer shall have only the rights of an Assignee, the Membership Interests so Transferred shall be subject to the foregoing sentence must make a determination repurchase provisions of priceSection 12.9 hereof, manner of paying, unsuitability, or otherwise, and shall also be subject to such determination shall be made by a majority of the members of such committee not counting the vote of any committee member who is an Unsuitable Person or an Affiliate of an Unsuitable Person.
(x) Except legal and equitable remedies as may be required by any applicable Gaming Laws or a Gaming Authority, the Board may waive any of the rights of available to the Company or any restrictions contained in this Section 21 in any instance in which and the Board determines that a waiver would be in the best interests of the Companyremaining Members. The Board may terminate any rights of the Company or restrictions set forth in this Section 21 to the extent Members acknowledge and understand that the Board determines that any such termination is in the best interests of the Company. Except as may be required by a Gaming Authority, nothing in this Section 21 shall be deemed or construed to require the Company to repurchase any Membership Interest owned or controlled by an Unsuitable Person or an Affiliate of an Unsuitable Person.
(xi) To the extent the above provisions are complied with and subject to Section 9(j) and Section 23, and any transfer restrictions in the Loan Documents and the Mezzanine A Loan Documents, each Member may assign in whole or in part its limited liability company interest in the Company. Subject to Section 23, if a Member transfers all of its Membership Interests in the Company pursuant to this Section 21cannot be readily purchased or sold in the open market, the transferee shall be admitted to the Company as a member and that each of the Company Members has entered into this Agreement in substantial reliance upon its execution the strict enforcement of an instrument signifying its agreement to be bound by the terms covenants and conditions of this Agreement. Because of such limited marketability of interests, which instrument such substantial reliance on the covenants and conditions hereof, and the unique relationship that exists among Members entering into a common business venture, among other reasons, it is expressly agreed and acknowledged that the Members will be irreparably damaged in the event that this Agreement is not specifically enforced. Should any dispute arise concerning the Transfer of Membership Interests, whether any such Transfer is being carried out or contemplated, an injunction may be a counterpart signature page to this Agreementissued restraining such Transfer pending the determination of such controversy. Such admission remedy shall, however, be cumulative and not exclusive, and shall be deemed effective immediately in addition to any other remedy which the parties may have.
(a) If a Class B Member ("Offeror") desires to sell all or a portion of its Class B Membership Interests to a Person, who prior to such sale is already a Class B Member ("Transferee"), then:
(1) The Offeror shall give MarkWest written notice (the transfer and, immediately following such admission, the transferor Member "Offer Notice") which shall cease to be include a member copy of the Company. Notwithstanding anything offer from the Transferee that the Offeror is willing to accept ("Purchase Offer") for the purchase of its interests (the "Offered Interest") and offer to sell the Offered Interest to MarkWest for the price contained in this Agreement the offer that such party is willing to the contrary, any successor to a Member by merger or consolidation accept ("Offer Price") and in accordance with the Basic Documents and this Agreement shall, without further act, same terms as those contained in the Purchase Offer.
(2) The offer to MarkWest shall be irrevocable for a Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.period ending at 5:00 p.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Markwest Energy Partners L P)
Restrictions on Transfers of Membership Interests. (ia) Subject to Sections 9(j), 23, and this Section 21 and any transfer restrictions in the Loan Documents and that certain Pledge and Security Agreement to be delivered by the Economic Member in favor of Mezzanine A Lender following the date hereof (the “Mezzanine A Pledge Agreement”), no No Member shall Transfer any Membership Interests now or hereafter held, other than in accordance with the terms of this Agreement, Agreement and the Transfer Restriction Agreement and the Loan DocumentsAgreement. Any Transfer or purported Transfer made in violation of this Agreement or the Transfer Restriction Agreement shall be null and void and of no effect. Notwithstanding anything to the contrary contained herein, the Transfer of the Class A Membership Interests to Voteco is hereby approved in all respects.
(iib) Notwithstanding anything to the contrary expressed or implied in this Agreement, the Transfer of any interest in the Company is ineffective unless approved in advance by the Commission. The Membership Interests owned or controlled by an Unsuitable Person or an Affiliate of an Unsuitable Person (an “Unsuitable Member”), shall be subject to redemption by the Company, out of funds legally available therefor, by action of the Board, to the extent required by the Gaming Authority making the determination of unsuitability or to the extent deemed necessary or advisable by the Board. If a Gaming Authority requires the Company, or the Board deems it necessary or advisable, to redeem any Membership Interests, the Company shall give a Redemption Notice to the Unsuitable Member and shall purchase the Membership Interests on the Redemption Date. From and after the Redemption Date, such Membership Interests shall no longer be deemed to be outstanding, such Unsuitable Member shall cease to be a Member, and all rights of the Unsuitable Member herein, other than the right to receive the Redemption Price, shall cease. The Unsuitable Member shall surrender any certificates representing the Membership Interests to be redeemed in accordance with the requirements of the Redemption Notice.
(iiic) Commencing on the date that a Gaming Authority serves notice of a determination of unsuitability or the Board determines that a Person is an Unsuitable Person, and until the Membership Interests Interest owned or controlled by such Person are owned or controlled by a Person who is not an Unsuitable Person, the Unsuitable Member shall not be entitled (i) to receive any distribution dividend or interest with regard to the Membership Interest; (ii) to exercise, directly or indirectly or through any proxy, trustee, or nominee, any voting or other right conferred by such Membership Interest, and such Membership Interest shall not for any purposes be included in the Percentage Interests entitled to vote, or (iii) to receive any remuneration in any form from the Company or any Affiliate of the Company for services rendered or otherwise.
(ivd) All notices given by the Company pursuant to this Section 21Section, including Redemption Notices, shall be in writing and may be given by mail, addressed to the Person at such Person’s address as it appears in the Company’s books and records, with postage thereon prepaid, and such notice shall be deemed given at the time deposited in the United States mail. Written notice may also be given personally or by telegram, facsimile, telex, cable or e-mail, and such notice shall be deemed given at the time of receipt thereof, if given personally, or at the time of transmission thereof, if given by telegram, facsimile, telex, cable or e-mail.
(ve) Any Unsuitable Member shall, to the fullest extent permitted by law, shall indemnify and hold harmless the Company and its Affiliates for any and all losses, costs and expenses, including attorneys’ fees, incurred by the Company and its Affiliates as a result of, or arising out of, such Unsuitable Member’s continuing ownership or control of a Membership Interest, or its neglect, refusal or failure to comply with the provisions of this Section 21Section, or failure to promptly divest itself of any Membership Interest when required by the Gaming Laws or this Section 21Section.
(vif) The Company is entitled to injunctive or other equitable relief in any court of competent jurisdiction to enforce the provisions of this Section 21 and each holder of the Membership Interests shall be deemed to have acknowledged, by acquiring the Membership Interest, that the failure to comply with this Section 21 will expose the Company to irreparable injury for which there is no adequate remedy at law and that the Company is entitled to injunctive relief to enforce the provisions of this Section 21Section.
(viig) The Company’s right of redemption provided in this Section 21 shall not be exclusive of any other rights the Company may have under this Agreement or hereafter acquire under any other agreement or otherwise.
(viiih) Nothing contained in this Section 21 shall limit the authority of the Board to take such other action to the extent permitted by law as it deems necessary or advisable to protect the Company or its Affiliates from the denial or threatened denial or loss or threatened loss of any Gaming Approvals. Without limiting the generality of the foregoing, the Board may conform any provisions of this Section 21 to the extent necessary to make such provisions consistent with Gaming Laws. In addition, the Board may, to the extent permitted by law, from time to time establish, modify, amend or rescind regulations and procedures of the Company not inconsistent with the express provisions of this Section 21 for the purpose of determining whether any Person is an Unsuitable Person and for the orderly application, administration and implementation of the provisions of this Section 21Section. Such procedures and regulations shall be kept on file with the Company’s Secretary, and shall be made available for inspection by the public and, upon request, mailed to any Member.
(ixi) The Board shall have exclusive authority and power to administer this Section 21 and to exercise all rights and powers specifically granted to the Board or the Company hereunder, or as may be necessary or advisable in the administration of this Section 21Section. All such actions which are taken or made by the Board in good faith shall be final, conclusive and binding on the Company and all other Persons; provided, however, that the Board may delegate all or any portion of its duties and powers under this Section 21 to a committee as it deems necessary or advisable. In each case where a committee designated by the Board pursuant to the foregoing sentence must make a determination of price, manner of paying, unsuitability, or otherwise, such determination shall be made by a majority of the members of such committee not counting the vote of any committee member who is an Unsuitable Person or an Affiliate of an Unsuitable Person.
(xj) Except as may be required by any applicable Gaming Laws or a Gaming Authority, the Board may waive any of the rights of the Company or any restrictions contained in this Section 21 in any instance in which the Board determines that a waiver would be in the best interests of the Company. The Board may terminate any rights of the Company or restrictions set forth in this Section 21 to the extent that the Board determines that any such termination is in the best interests of the Company. Except as may be required by a Gaming Authority, nothing in this Section 21 shall be deemed or construed to require the Company to repurchase any Membership Interest owned or controlled by an Unsuitable Person or an Affiliate of an Unsuitable Person.
(xi) To the extent the above provisions are complied with and subject to Section 9(j) and Section 23, and any transfer restrictions in the Loan Documents and the Mezzanine A Loan Documents, each Member may assign in whole or in part its limited liability company interest in the Company. Subject to Section 23, if a Member transfers all of its Membership Interests in the Company pursuant to this Section 21, the transferee shall be admitted to the Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Notwithstanding anything in this Agreement to the contrary, any successor to a Member by merger or consolidation in accordance with the Basic Documents and this Agreement shall, without further act, be a Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Nevada Property 1 LLC)