Duties of Manager. In consideration of the compensation to be paid to Manager by Owner pursuant to this Agreement, and subject to the agreement of Owner to make payments to Manager pursuant to this Agreement, Manager shall provide and perform, or cause its affiliate(s) to provide and perform (provided that in such case, Manager shall remain primarily responsible), on behalf of Owner the services set forth in this Section 5, which services shall be provided and performed during the term of this Agreement at a level or standard of care no less than the level or standard of care customarily applied by container lessors generally. (a) In the event of a breach of any manufacturer’s, subcontractor’s, dealer’s or other entity’s warranty as to the condition, merchantability, fitness for a particular purpose, or otherwise with respect to any or all of the Containers, provided that Owner has specifically authorized in advance in writing the expenditure of all fees and expenses related thereto (including but not limited to legal expenses), Manager agrees to pursue all reasonable actions on Owner’s behalf against said warrantors at Owner’s expense. Manager makes no independent representations or warranties to Owner with respect to the condition, merchantability, fitness for any particular purpose with respect to any such Containers and shall have no liability to Owner for any breach of any manufacturer’s, subcontractor’s, dealer’s or other entity’s warranty with respect thereto. (b) Use good faith efforts throughout the term of this Agreement to lease the Containers to oceangoing shipping lines or other Lessees as reasonably determined by Manager in accordance with its standard credit and collection policies and procedures which Manager normally uses with respect to other containers in Manager’s Fleet, and to manage Owner’s Fleet on a non-discriminatory basis in relation to the other containers in Manager’s Fleet, with respect to lease-outs, cash receipts, operating expenses, and other management services. In that regard, on a non-discriminatory basis relative to other containers in Manager’s Fleet, Manager will use its best efforts to avoid leasing all of Owner’s Fleet to one shipping line. (c) Use good faith efforts to collect from Lessees, in accordance with the terms of any Lease, all rental payments and all other amounts due with respect to the Containers under any Leases and account for and remit those sums due to Owner as hereinafter provided. Notwithstanding the foregoing, Manager shall not be required to institute legal action to collect any sums due to Owner as aforesaid unless: (i) Manager determines to take such action to enforce such Leases with respect to *** covered by such Leases under which the Lessees have defaulted in their payment obligations to Manager and/or to Owner, or (ii) Containers constitute at least *** covered by such defaulted Lease(s), and Owner agrees to indemnify Manager with respect to such enforcement action (including with respect to claims, losses and liabilities asserted by the owners of any of the other containers in Manager’s Fleet covered by such defaulted Lease(s) including Manager itself) and to *** associated therewith including the reasonable cost of the time of Manager’s employees spent on such enforcement proceedings. *** incurred by Manager with respect to enforcement proceedings under subclause (i) shall be allocated proportionally based on the number of Containers included among the containers in Manager’s Fleet covered by such defaulted Leases, and Owner’s pro rata share thereof shall be deemed to be Operating Expenses for purposes of this Agreement. The costs and expenses incurred by Manager with respect to enforcement proceedings under subclause (ii) shall be wholly for Owner’s account and shall be deemed to be Operating Expenses for purposes of this Agreement upon Owner’s authorization to undertake such proceedings. With respect to enforcement proceedings undertaken by Manager pursuant to this subsection, Manager agrees to consult with Owner in each case in which the claims relating to Containers under such defaulted Lease can reasonably be expected to exceed *** and/or the costs relating to Containers under such defaulted Lease can reasonably be expected to exceed *** Manager further agrees to be guided in the conduct of such proceedings by the opinion of the majority in interest of all owners of containers (including the Containers) affected by such defaulted Lease, including for this purpose, Manager’s vote as owner with respect to the containers it owns for its own account. (d) Take such steps as may be required to ensure that all obligations and duties arising under the Leases, whether of Lessees or Manager, are performed or complied with in an orderly and timely fashion; and terminate Leases under which the Lessees are in material default and recover possession of the Containers and enforce all rights of Manager and/or Owner with respect thereto, including the payment of all amounts owing under Leases or otherwise with respect to such Containers, institute and prosecute legal proceedings in the name of Owner and/or Manager as permitted by applicable laws in order to terminate such Leases and/or recover possession of the Containers and settle, compromise and/or release such proceedings or reinstate such Leases. Provided, however, that Manager may not settle any counter-claims filed against Owner without first receiving Owner’s written consent. Except as otherwise specifically provided in subsection (c) above, in determining what action to take, and ‘in performing its duties under this subsection, Manager shall be entitled to follow its standard credit and collection policies and procedures which Manager normally uses with respect to other containers in Manager’s Fleet. All costs and expenses incurred by Manager in performing the foregoing shall be allocated based on the number of Containers included among the containers covered by such defaulted Leases, and Owner’s share of such costs and expenses with respect to the Containers shall be deemed to be Operating Expenses for purposes of this Agreement. (e) Cause all Containers to be maintained and repaired in the ordinary course of Manager’s business in good and safe operating condition and cause said Containers to be periodically inspected. (f) Place and use its best efforts to maintain in effect on an “occurrence basis,” if available on commercially reasonable terms, throughout the term of this Agreement in Manager’s name a blanket insurance policy(s) covering the Containers, or an insurance policy covering all the containers in Manager’s Fleet including the Containers, under which Owner (and Owner’s lender(s) if applicable) will be named as additional insureds and loss payees, and including coverage which is at least as broad in scope and as great in amount as the coverage provided by Manager for other containers of the same Type(s) in Manager’s Fleet and coverage which is generally comparable to industry practices. Attached hereto, made a part hereof and marked, “Exhibit B,” is/are (a) certificate(s) of insurance which describes the coverage which Manager has in effect on Manager’s Fleet at the time of the execution of this Agreement which coverage will be extended to all Containers upon acquisition by Owner. Manager shall provide an executed original of such certificate to Owner and Owner’s Agent upon execution of this Agreement and shall continue to provide to Owner and Owner’s Agent (and to Owner’s lender(s) if applicable) renewal certificate(s) evidencing the coverages required herein prior to the expiration of the certificate(s) in existence at the time of the execution of this Agreement. All such certificates shall provide that the insurer shall give Owner and Owner’s Agent at least 30 days prior written notice of any cancellation or material modification of the coverage. Manager shall have the right to change its existing insurance coverage on the containers in Manager’s Fleet if in Manager’s reasonable and good faith judgment such change is required due to changing costs for insurance or changing industry practices. Manager agrees to notify Owner at least 30 days in advance of any such contemplated changes in insurance coverage. If Owner wishes insurance coverage which is broader in scope and/or greater in amount than that purchased by Manager for the containers in Manager’s Fleet, then Manager will cooperate in arranging such additional coverage and Owner shall pay the incremental cost thereof. Manager will use good faith efforts to insure the Containers at their respective Stipulated Loss Values as those values vary from time to time. If Manager is unable (within the parameters set forth herein) to obtain property loss and damage coverage for the Containers which values the Containers at their respective Stipulated Loss Values as those values vary from time to time, Manager will immediately notify Owners Agent so that Owner may attempt to obtain (at Owner’s sole cost) supplemental coverage for the Containers if Owner so elects. (g) On behalf of Owner pay all Operating Expenses including charges, assessments, and levies imposed upon or against the Containers other than charges, assessments or levies payable by and chargeable to any Lessee under any Lease or otherwise, of whatever kind or nature and, in Manager’s reasonable discretion, defend against any such charges, assessments or levies and seek revision or appeal from any charge, assessment or levy deemed improper, all such actions to be in the name of Manager or Owner or both as Manager determines in its reasonable discretion, and brought on behalf of Owner and at the expense of Owner. Provided, however, if Manager brings an action the outcome of which will directly affect containers in Manager’s Fleet owned by entities other than Owner, Owner’s responsibility for costs incurred in such actions shall be shared proportionally with the other owners on the basis of the number of affected Containers to all affected containers in Manager’s Fleet. If Owner chooses to utilize the Containers as collateral for debt financing purposes at any time while such Containers remain covered by this Agreement, Owner shall pay all sums due with respect to such financing (“Debt Capital”) in full in a timely manner, and shall indemnify Manager and any Lessee’s of the Containers from the consequences of any failure by Owner to remain in compliance with the terms of such Debt Capital. (h) Monitor and record status and/or location and movement of the Containers and make such records available for inspection by Owner or Owner’s Agent during reasonable business hours and after reasonable notice, and allow Owner and Owner’s Agent to make photocopies thereof. Make available to Owner and Owner’s Agent for discussion and questions such of Manager’s employees as reasonably requested by Owner or Owner’s Agent during reasonable business hours. (i) Maintain or have maintained complete and accurate books and records indicating by serial number the ownership of each Container and of transactions relating to the Containers and retain such books and records in accordance with Manager’s normal records retention policies, and will make such books and records available for inspection by Owner or Owner’s Agent during reasonable business hours and after reasonable notice, and allow Owner or Owner’s Agent to make photocopies thereof. (j) As soon as reasonably practicable, place decals, plates and/or such other marks, legends, or decals on the Containers to indicate that such Containers are owned by Owner and that they may be subject to a security interest in favor of one or more financial institutions. Manager may also label the Containers with all of its customary labels, marks and decals and/or to indicate that they are managed by Manager. The cost of placing all such marks, legends or decals on the Containers shall be included in the Per Container Price and Total Invoice Price paid by Owner. (k) Advise Owner with respect to the sale of any Containers and, upon request of Owner, cooperate with Owner to use good faith efforts in securing a purchaser for such Containers; provided, however, that except as expressly provided in Section 4(c), 4(d), 7, and Section 13 hereof, Manager shall not have any authority to offer for sale, contract or agree to sell, or sell any of the Containers. (l) Upon removal of any Container from coverage under this Agreement pursuant to Section 13(a)(ii), unless such Container is sold or disposed of by Manager on behalf of Owner in accordance with Section 13(a)(ii), arrange as promptly as possible for the transportation of such Container, at Owner’s expense, in an “as is” condition to such destination as requested by the Owner. (m) Subject to Section 13, cause Capital Improvements to be made to the Containers. (n) Concurrently with the monthly payment of Owner’s Net Distribution required under Section 9 of this Agreement, remit into Owner’s Account the amount of Net Proceeds from Sale or Disposition of Containers accrued during such time period, and notify Owner’s Agent of the date and amount of such payment.
Appears in 2 contracts
Sources: Management Agreement (CAI International, Inc.), Management Agreement (CAI International, Inc.)
Duties of Manager. In consideration MANAGER is hereby authorized and directed by OWNER to do all of the compensation to be paid to Manager by Owner pursuant to this Agreementfollowing and agrees, and subject to the agreement of Owner to make payments to Manager pursuant to this Agreement, Manager shall provide and perform, or cause its affiliate(s) to provide and perform (provided that in such case, Manager shall remain primarily responsible), each case on behalf of Owner and at the services set forth in this Section 5expense of OWNER, which services shall be provided and performed during the term of this Agreement at a level or standard of care no less than the level or standard of care customarily applied by container lessors generally.to:
(a) In supervise and direct the event of a breach of any manufacturer’s, subcontractor’s, dealer’s or other entity’s warranty as to the condition, merchantability, fitness for a particular purpose, or otherwise with respect to any or all general operations of the Containers, provided that Owner has specifically authorized in advance in writing the expenditure of all fees Plant and expenses related thereto (including but not limited to legal expenses), Manager agrees to pursue all reasonable actions on Owner’s behalf against said warrantors at Owner’s expense. Manager makes no independent representations or warranties to Owner with respect to the condition, merchantability, fitness for any particular purpose with respect to any such Containers operate it efficiently and shall have no liability to Owner for any breach of any manufacturer’s, subcontractor’s, dealer’s or other entity’s warranty with respect thereto.effectively;
(b) Use good faith efforts throughout hire, pay, supervise and discharge all employees necessary to properly maintain and operate the term of this Agreement to lease the Containers to oceangoing shipping lines or other Lessees as reasonably determined by Manager Plant in accordance with its standard credit OWNER's terms and collection policies and procedures conditions of employment, provided, however, that MANAGER shall obtain the approval of OWNER prior to reassigning or terminating the Plant Controller, which Manager normally uses with respect to other containers in Manager’s Fleetapproval shall not be unreasonably withheld, and cause to manage Owner’s Fleet on a non-discriminatory basis be prepared and timely filed and paid all necessary returns, forms and payments in relation to the other containers in Manager’s Fleetconnection with unemployment insurance, with respect to lease-outswithholding, cash receipts, operating expenses, social security and other management services. In that regardlike benefits and taxes, on a non-discriminatory basis relative all such employees to other containers in Manager’s Fleetbe employees of OWNER and not of MANAGER (notwithstanding the above, Manager will use its best efforts OWNER shall retain the right to avoid leasing all unilaterally terminate the services of Owner’s Fleet to one shipping line.the Plant Controller);
(c) Use good faith efforts prepare or cause to collect from Lesseesbe prepared for review and approval of OWNER an annual operating budget setting forth the anticipated income and expenses for the Plant for the ensuing year, in accordance with a comparison of such budget to the terms income and expenses of the preceding and current years, and any Lease, all rental payments and all other amounts due required explanations with respect to the Containers under any Leases and account for and remit those sums due to Owner as hereinafter provided. Notwithstanding the foregoing, Manager shall not be required to institute legal action to collect any sums due to Owner as aforesaid unless: (i) Manager determines to take such action to enforce such Leases with respect to *** covered by such Leases under which the Lessees have defaulted in their payment obligations to Manager and/or to Owner, or (ii) Containers constitute at least *** covered by such defaulted Lease(s), and Owner agrees to indemnify Manager with respect to such enforcement action (including with respect to claims, losses and liabilities asserted by the owners of any of the other containers in Manager’s Fleet covered by such defaulted Lease(s) including Manager itself) and to *** associated therewith including the reasonable cost of the time of Manager’s employees spent on such enforcement proceedings. *** incurred by Manager with respect to enforcement proceedings under subclause (i) shall be allocated proportionally based on the number of Containers included among the containers in Manager’s Fleet covered by such defaulted Leases, and Owner’s pro rata share thereof shall be deemed to be Operating Expenses for purposes of this Agreement. The costs and expenses incurred by Manager with respect to enforcement proceedings under subclause (ii) shall be wholly for Owner’s account and shall be deemed to be Operating Expenses for purposes of this Agreement upon Owner’s authorization to undertake such proceedings. With respect to enforcement proceedings undertaken by Manager pursuant to this subsection, Manager agrees to consult with Owner in each case in which the claims relating to Containers under such defaulted Lease can reasonably be expected to exceed *** and/or the costs relating to Containers under such defaulted Lease can reasonably be expected to exceed *** Manager further agrees to be guided in the conduct of such proceedings by the opinion of the majority in interest of all owners of containers (including the Containers) affected by such defaulted Lease, including for this purpose, Manager’s vote as owner with respect to the containers it owns for its own account.thereto;
(d) Take such steps set up and keep in good order separate, accurate and adequate accounting records to be maintained for OWNER, and maintain orderly files containing income records, insurance policies, leases and subleases, correspondence, receipted bills and vouchers, and all other documents pertaining to the Plant or the operation thereof, and prepare or cause to be prepared for OWNER monthly and annual statements of account as may be required to ensure that all obligations and duties arising under the Leases, whether of Lessees or Manager, are performed or complied with in an orderly and timely fashion; and terminate Leases under which the Lessees are in material default and recover possession of the Containers end of each month and enforce year, all rights of Manager and/or Owner in accordance with respect thereto, including the payment of all amounts owing under Leases or otherwise with respect to such Containers, institute and prosecute legal proceedings in the name of Owner and/or Manager as permitted by applicable laws in order to terminate such Leases and/or recover possession of the Containers and settle, compromise and/or release such proceedings or reinstate such Leases. Provided, however, that Manager may not settle any counter-claims filed against Owner without first receiving Owner’s written consent. Except as otherwise specifically provided in subsection (c) above, in determining what action to take, and ‘in performing its duties under this subsection, Manager shall be entitled to follow its standard credit and collection policies and procedures which Manager normally uses with respect to other containers in Manager’s Fleet. All costs and expenses incurred by Manager in performing the foregoing shall be allocated based on the number of Containers included among the containers covered by such defaulted Leases, and Owner’s share of such costs and expenses with respect to the Containers shall be deemed to be Operating Expenses for purposes of this Agreement.paragraph 28;
(e) Cause check all Containers bills received for services, work and supplies ordered in connection with maintaining and operating the Plant and pay, with OWNER's funds, or cause to be maintained paid all such expenses, mortgage interest and repaired in amortization, ground rent, water charges, sewer rent, assessments, real estate taxes, and other taxes assessed against the ordinary course of Manager’s business in good Plant as and safe operating condition when the same shall become due and cause said Containers to be periodically inspected.payable;
(f) Place establish and use its best efforts maintain the Accounts; collect payments from customers of the Plant and take any and all actions MANAGER deems necessary or desirable to maintain in effect on an “occurrence basis,” if available on commercially reasonable terms, throughout the term of this Agreement in Manager’s name a blanket insurance policy(s) covering the Containers, or an insurance policy covering all the containers in Manager’s Fleet including the Containers, under which Owner (and Owner’s lender(s) if applicable) will be named as additional insureds and loss payeescollect such payments; deposit such payments into, and including coverage which is at least as broad withdraw or disburse such amounts from, the Accounts; all in scope and as great in amount as the coverage provided by Manager for other containers of the same Type(s) in Manager’s Fleet and coverage which is generally comparable to industry practices. Attached hereto, made a part hereof and marked, “Exhibit B,” is/are (a) certificate(s) of insurance which describes the coverage which Manager has in effect on Manager’s Fleet at the time of the execution of this Agreement which coverage will be extended to all Containers upon acquisition by Owner. Manager shall provide an executed original of such certificate to Owner and Owner’s Agent upon execution of this Agreement and shall continue to provide to Owner and Owner’s Agent (and to Owner’s lender(s) if applicable) renewal certificate(s) evidencing the coverages required herein prior to the expiration of the certificate(s) in existence at the time of the execution of this Agreement. All such certificates shall provide that the insurer shall give Owner and Owner’s Agent at least 30 days prior written notice of any cancellation or material modification of the coverage. Manager shall have the right to change its existing insurance coverage on the containers in Manager’s Fleet if in Manager’s reasonable and good faith judgment such change is required due to changing costs for insurance or changing industry practices. Manager agrees to notify Owner at least 30 days in advance of any such contemplated changes in insurance coverage. If Owner wishes insurance coverage which is broader in scope and/or greater in amount than that purchased by Manager for the containers in Manager’s Fleet, then Manager will cooperate in arranging such additional coverage and Owner shall pay the incremental cost thereof. Manager will use good faith efforts to insure the Containers at their respective Stipulated Loss Values as those values vary from time to time. If Manager is unable (within the parameters set forth herein) to obtain property loss and damage coverage for the Containers which values the Containers at their respective Stipulated Loss Values as those values vary from time to time, Manager will immediately notify Owners Agent so that Owner may attempt to obtain (at Owner’s sole cost) supplemental coverage for the Containers if Owner so electsaccordance with paragraph 12.
(g) On behalf comply with all covenants of Owner pay all Operating Expenses including charges, assessments, and levies imposed upon or against the Containers other than charges, assessments or levies payable by and chargeable to any Lessee OWNER under any Lease or otherwise, of whatever kind or nature and, in Manager’s reasonable discretion, defend against any such charges, assessments or levies and seek revision or appeal from any charge, assessment or levy deemed improper, all such actions to be in the name of Manager or Owner or both as Manager determines in its reasonable discretion, and brought on behalf of Owner and at the expense of Owner. Provided, however, if Manager brings an action the outcome of which will directly affect containers in Manager’s Fleet owned by entities other than Owner, Owner’s responsibility for costs incurred in such actions shall be shared proportionally with the other owners on the basis of the number of affected Containers to all affected containers in Manager’s Fleet. If Owner chooses to utilize the Containers as collateral for debt financing purposes at any time while such Containers remain covered by this Agreement, Owner shall pay all sums due with respect to such financing (“Debt Capital”) in full in a timely manner, and shall indemnify Manager and any Lessee’s of the Containers from the consequences of any failure by Owner to remain in compliance with the terms of such Debt Capital.any mortgage loan affecting the Plant, subject to OWNER's duties in paragraph 6(a);
(h) Monitor cause to be effected and record status and/or location and movement of maintained on the Containers and make such records available for inspection by Owner or Owner’s Agent during reasonable business hours and after reasonable notice, and allow Owner and Owner’s Agent Plant the insurance referred to make photocopies thereof. Make available to Owner and Owner’s Agent for discussion and questions such of Manager’s employees as reasonably requested by Owner or Owner’s Agent during reasonable business hours.in paragraph 29;
(i) Maintain notify OWNER and applicable insurance carriers of policies under paragraph 29 of any serious bodily injury (including death) to any Person and any substantial property damage, or claims as to either, that MANAGER has knowledge of or should have maintained complete and accurate books and records indicating by serial number the ownership of each Container and of transactions relating to the Containers and retain such books and records in accordance with Manager’s normal records retention policiesknowledge of, and will make such books and records available for inspection deliver to OWNER any legal process received by Owner it which affects or Owner’s Agent during reasonable business hours and after reasonable notice, and allow Owner may affect OWNER or Owner’s Agent to make photocopies thereof.the Plant;
(j) As soon as reasonably practicablecontract for and cause the purchase of all services, place decalsgrains, plates and/or such supplies and other marksmaterials necessary for the Plant to produce the Products and contract for and cause the marketing and sale of the Products; provided, legendshowever, or decals on MANAGER shall not contract with an affiliate of MANAGER for any of the Containers to indicate that such Containers are owned by Owner and that they may be subject to a security interest items stated in favor this paragraph 3(j), without the prior approval of one or more financial institutions. Manager may also label the Containers with all of its customary labels, marks and decals and/or to indicate that they are managed by Manager. The cost of placing all such marks, legends or decals on the Containers shall be included in the Per Container Price and Total Invoice Price paid by Owner.OWNER;
(k) Advise Owner with respect contract for electricity, natural gas, water, waste water, fuel oil, rubbish and snow removal, vermin extermination and such other services or such of them as MANAGER deems necessary or advisable, provided, however, MANAGER shall not contract for electricity, natural gas, water and waste water without the prior approval of OWNER;
(l) contract for and cause the Plant and all fixtures, furnishings, equipment, supplies, tools, and other materials and facilities thereof to be maintained in good order and condition; to cause all routine repairs, replacements and alterations to be made thereto; and to purchase such items MANAGER deems necessary or desirable for the sale operation and maintenance of any Containers and, upon request of Owner, cooperate with Owner to use good faith efforts in securing a purchaser for such Containersthe Plant; provided, however, that except as expressly provided in Section 4(c), 4(d), 7, and Section 13 hereof, Manager MANAGER shall not have contract for any authority to offer particular item involving an expenditure in excess of $15,000, other than budgeted items, without the prior approval of OWNER except in circumstances which MANAGER reasonably believes constitutes an emergency requiring immediate action for sale, contract the preservation or agree to sell, or sell any safety of the Containers.
(l) Upon removal Plant or its occupants or to avoid the suspension of any Container from coverage under this Agreement pursuant to Section 13(a)(ii), unless such Container is sold or disposed of by Manager on behalf of Owner in accordance with Section 13(a)(ii), arrange as promptly as possible for the transportation of such Container, at Owner’s expense, in an “as is” condition to such destination as requested by the Owner.necessary service;
(m) Subject use its best efforts to Section 13, cause Capital Improvements the Plant and its operations to be made to the Containers. comply with all applicable laws and regulations;
(n) Concurrently act in compliance with OWNER's Operating Agreement and other governing documents provided that (i) MANAGER has actual knowledge of OWNER's Operating Agreement and other governing documents, and any amendments thereto, and (ii) the monthly payment of Owner’s Net Distribution required under Section 9 terms of this Agreement, remit into Owner’s Account the amount of Net Proceeds from Sale Agreement shall not altered or Disposition of Containers accrued during such time period, and notify Owner’s Agent amended by any of the date terms of OWNER's Operating Agreement and amount other governing documents and any amendments thereto;
(o) reasonably cooperate with OWNER and its attorneys and accountants in making any disclosures required by the Securities Act of 1933 and the Securities Exchange Act of 1934 or any other securities laws;
(p) recommend and, subject to the approval of OWNER, cause all such paymentacts and things to be done in or about the Plant as shall be necessary to comply with any and all orders or violations affecting the Plant placed thereon by any federal, state or municipal authority having jurisdiction thereover, subject to OWNER's duties in paragraph 6(a);
(q) cooperate with OWNER's accountants in regard to the preparation and filing on behalf of OWNER of any income or other tax return; and
(r) provide benchmarking services to OWNER as described on EXHIBIT A attached hereto.
Appears in 2 contracts
Sources: Management Agreement (East Kansas Agri Energy LLC), Credit Agreement (East Kansas Agri Energy LLC)
Duties of Manager. In consideration of the compensation to be paid to Manager by Owner pursuant to this Agreement, and subject to the agreement of Owner to make payments to Manager pursuant to this Agreement, Manager shall provide and perform, or cause its affiliate(s) to provide and perform (provided that in such case, Manager shall remain primarily responsible), on behalf of Owner the services set forth in this Section 5, which services shall be provided and performed during the term of this Agreement at a level or standard of care no less than the level or standard of care customarily applied by container lessors generally.
(a) In the event of a breach of any manufacturer’s, subcontractor’s, dealer’s or other entity’s warranty as Subject to the condition, merchantability, fitness for a particular purpose, or otherwise with respect to any or all general supervision of the ContainersBoard, provided that Owner has specifically authorized in advance in writing the expenditure Manager shall manage the investment operations of all fees each Fund and expenses related thereto (the composition of each Fund’s assets, including but not limited to legal expenses)the purchase, Manager agrees to pursue all reasonable actions on Owner’s behalf against said warrantors at Owner’s expense. Manager makes no independent representations or warranties to Owner with respect to the condition, merchantability, fitness for any particular purpose with respect to any such Containers retention and shall have no liability to Owner for any breach of any manufacturer’s, subcontractor’s, dealer’s or other entity’s warranty with respect thereto.
(b) Use good faith efforts throughout the term of this Agreement to lease the Containers to oceangoing shipping lines or other Lessees as reasonably determined by Manager in accordance with its standard credit and collection policies and procedures which Manager normally uses with respect to other containers in Manager’s Fleet, and to manage Owner’s Fleet on a non-discriminatory basis in relation to the other containers in Manager’s Fleet, with respect to lease-outs, cash receipts, operating expenses, and other management servicesdisposition thereof. In that this regard, on a non-discriminatory basis relative to other containers in the Manager’s Fleet, Manager will use its best efforts to avoid leasing all of Owner’s Fleet to one shipping line.:
(c) Use good faith efforts to collect from Lessees, in accordance with the terms of any Lease, all rental payments and all other amounts due with respect to the Containers under any Leases and account for and remit those sums due to Owner as hereinafter provided. Notwithstanding the foregoing, Manager shall not be required to institute legal action to collect any sums due to Owner as aforesaid unless: (i) Manager determines to take such action to enforce such Leases with respect to *** covered by such Leases under which the Lessees have defaulted in their payment obligations to Manager and/or to Owner, or (ii) Containers constitute at least *** covered by such defaulted Lease(s), and Owner agrees to indemnify Manager with respect to such enforcement action (including with respect to claims, losses and liabilities asserted by the owners of any of the other containers in Manager’s Fleet covered by such defaulted Lease(s) including Manager itself) and to *** associated therewith including the reasonable cost of the time of Manager’s employees spent on such enforcement proceedings. *** incurred by Manager with respect to enforcement proceedings under subclause (i) shall be allocated proportionally based on provide supervision of each Fund’s assets, furnish a continuous investment program for each Fund in accordance with each Fund’s Prospectus and Statement of Additional Information (“SAI”) included as part of the number of Containers included among Trust’s registration statement filed with the containers in Manager’s Fleet covered by such defaulted LeasesSEC, and Owner’s pro rata share thereof shall be deemed to be Operating Expenses for purposes of this Agreement. The costs and expenses incurred by Manager with respect to enforcement proceedings under subclause (ii) shall be wholly for Owner’s account and shall be deemed to be Operating Expenses for purposes of this Agreement upon Owner’s authorization to undertake such proceedings. With respect to enforcement proceedings undertaken by Manager pursuant to this subsectiondetermine, Manager agrees to consult with Owner in each case in which the claims relating to Containers under such defaulted Lease can reasonably be expected to exceed *** and/or the costs relating to Containers under such defaulted Lease can reasonably be expected to exceed *** Manager further agrees to be guided in the conduct of such proceedings by the opinion of the majority in interest of all owners of containers (including the Containers) affected by such defaulted Lease, including for this purpose, Manager’s vote as owner with respect to the containers it owns for its own account.
(d) Take such steps as may be required to ensure that all obligations and duties arising under the Leases, whether of Lessees or Manager, are performed or complied with in an orderly and timely fashion; and terminate Leases under which the Lessees are in material default and recover possession of the Containers and enforce all rights of Manager and/or Owner with respect thereto, including the payment of all amounts owing under Leases or otherwise with respect to such Containers, institute and prosecute legal proceedings in the name of Owner and/or Manager as permitted by applicable laws in order to terminate such Leases and/or recover possession of the Containers and settle, compromise and/or release such proceedings or reinstate such Leases. Provided, however, that Manager may not settle any counter-claims filed against Owner without first receiving Owner’s written consent. Except as otherwise specifically provided in subsection (c) above, in determining what action to take, and ‘in performing its duties under this subsection, Manager shall be entitled to follow its standard credit and collection policies and procedures which Manager normally uses with respect to other containers in Manager’s Fleet. All costs and expenses incurred by Manager in performing the foregoing shall be allocated based on the number of Containers included among the containers covered by such defaulted Leases, and Owner’s share of such costs and expenses with respect to the Containers shall be deemed to be Operating Expenses for purposes of this Agreement.
(e) Cause all Containers to be maintained and repaired in the ordinary course of Manager’s business in good and safe operating condition and cause said Containers to be periodically inspected.
(f) Place and use its best efforts to maintain in effect on an “occurrence basis,” if available on commercially reasonable terms, throughout the term of this Agreement in Manager’s name a blanket insurance policy(s) covering the Containers, or an insurance policy covering all the containers in Manager’s Fleet including the Containers, under which Owner (and Owner’s lender(s) if applicable) will be named as additional insureds and loss payees, and including coverage which is at least as broad in scope and as great in amount as the coverage provided by Manager for other containers of the same Type(s) in Manager’s Fleet and coverage which is generally comparable to industry practices. Attached hereto, made a part hereof and marked, “Exhibit B,” is/are (a) certificate(s) of insurance which describes the coverage which Manager has in effect on Manager’s Fleet at the time of the execution of this Agreement which coverage will be extended to all Containers upon acquisition by Owner. Manager shall provide an executed original of such certificate to Owner and Owner’s Agent upon execution of this Agreement and shall continue to provide to Owner and Owner’s Agent (and to Owner’s lender(s) if applicable) renewal certificate(s) evidencing the coverages required herein prior to the expiration of the certificate(s) in existence at the time of the execution of this Agreement. All such certificates shall provide that the insurer shall give Owner and Owner’s Agent at least 30 days prior written notice of any cancellation or material modification of the coverage. Manager shall have the right to change its existing insurance coverage on the containers in Manager’s Fleet if in Manager’s reasonable and good faith judgment such change is required due to changing costs for insurance or changing industry practices. Manager agrees to notify Owner at least 30 days in advance of any such contemplated changes in insurance coverage. If Owner wishes insurance coverage which is broader in scope and/or greater in amount than that purchased by Manager for the containers in Manager’s Fleet, then Manager will cooperate in arranging such additional coverage and Owner shall pay the incremental cost thereof. Manager will use good faith efforts to insure the Containers at their respective Stipulated Loss Values as those values vary from time to time. If Manager is unable (within the parameters set forth herein) to obtain property loss and damage coverage for the Containers which values the Containers at their respective Stipulated Loss Values as those values vary from time to time, what investments or securities will be purchased, retained or sold by each Fund and what portion of the assets of each Fund will be invested or held uninvested as cash;
(ii) shall provide periodic reports to the Trust’s Board of Trustees concerning the Manager’s discharge of its duties and responsibilities under this Agreement as the Board of Trustees shall reasonably request;
(iii) shall vote, or in accordance with the Manager’s proxy voting policies, procedures and guidelines cause to be voted, proxies, exercise consents, and exercise all other rights appertaining to securities and assets held by each Fund in accordance with the voting policies and procedures approved by the Board;
(iv) shall, as appropriate, select broker-dealers to execute portfolio transactions for each Fund. All purchase and sale orders will be placed with broker-dealers who are selected by the Manager will immediately notify Owners Agent so that Owner may attempt as able to obtain (at Owner’s sole cost) supplemental coverage provide “best execution” of such orders for the Containers if Owner so elects.
Funds. However, this responsibility shall not be deemed to obligate Manager to solicit competitive bids for each transaction. Manager agrees that it will not execute any portfolio transactions with a broker or dealer which is an “affiliated person” (g) On behalf of Owner pay all Operating Expenses including charges, assessments, and levies imposed upon or against the Containers other than charges, assessments or levies payable by and chargeable to any Lessee under any Lease or otherwise, of whatever kind or nature and, in Manager’s reasonable discretion, defend against any such charges, assessments or levies and seek revision or appeal from any charge, assessment or levy deemed improper, all such actions to be as defined in the name ▇▇▇▇ ▇▇▇) of the Manager except pursuant to the Trust’s Board approved 17e-1 Polices and Procedures for Affiliated Brokerage Transactions. “Best execution” shall mean prompt and reliable execution at the most favorable securities price, taking into account the other provisions hereinafter set forth. Whenever the Manager places orders, or Owner directs the placement of orders, for the purchase or both as Manager determines in its reasonable discretion, and brought sale of portfolio securities on behalf of Owner and at each Fund, in selecting brokers or dealers to execute such orders, the expense of Owner. ProvidedManager is expressly authorized to consider the fact that a broker or dealer has furnished statistical, however, if Manager brings an action research or other information or services that may enhance the outcome of which will directly affect containers in Manager’s Fleet owned by entities other than Owner, Owner’s responsibility for costs incurred in such actions shall be shared proportionally with the other owners on the basis of the number of affected Containers to all affected containers in Manager’s Fleetresearch and portfolio management capability generally. If Owner chooses to utilize the Containers as collateral for debt financing purposes at any time while such Containers remain covered by this Agreement, Owner shall pay all sums due with respect to such financing (“Debt Capital”) in full in a timely manner, and shall indemnify Manager and any Lessee’s of the Containers from the consequences of any failure by Owner to remain in compliance with the terms of such Debt Capital.
(h) Monitor and record status and/or location and movement of the Containers and make such records available for inspection by Owner or Owner’s Agent during reasonable business hours and after reasonable notice, and allow Owner and Owner’s Agent to make photocopies thereof. Make available to Owner and Owner’s Agent for discussion and questions such of Manager’s employees as reasonably requested by Owner or Owner’s Agent during reasonable business hours.
(i) Maintain or have maintained complete and accurate books and records indicating by serial number the ownership of each Container and of transactions relating to the Containers and retain such books and records in accordance with Manager’s normal records retention policies, and will make such books and records available for inspection by Owner or Owner’s Agent during reasonable business hours and after reasonable notice, and allow Owner or Owner’s Agent to make photocopies thereof.
(j) As soon as reasonably practicable, place decals, plates and/or such other marks, legends, or decals on the Containers to indicate that such Containers are owned by Owner and that they may be subject to a security interest in favor of one or more financial institutions. Manager may also label the Containers with all of its customary labels, marks and decals and/or to indicate that they are managed by Manager. The cost of placing all such marks, legends or decals on the Containers shall be included in the Per Container Price and Total Invoice Price paid by Owner.
(k) Advise Owner with respect to the sale of any Containers and, upon request of Owner, cooperate with Owner to use good faith efforts in securing a purchaser for such Containers; provided, however, that except as expressly provided in Section 4(c), 4(d), 7, and Section 13 hereof, Manager shall not have any authority to offer for sale, contract or agree to sell, or sell any of the Containers.
(l) Upon removal of any Container from coverage under this Agreement pursuant to Section 13(a)(ii), unless such Container It is sold or disposed of by Manager on behalf of Owner further understood in accordance with Section 13(a)(ii28(e) of Securities Exchange Act of 1934 Act, amended (“1934 Act”), arrange as promptly as possible that the Manager may use a broker whose commissions on transactions may exceed the commissions that another broker would have charged for effecting the transportation of such Containertransactions, at Owner’s expense, provided that the Manager determines in an “as is” condition to such destination as requested by the Owner.
(m) Subject to Section 13, cause Capital Improvements to be made to the Containers. (n) Concurrently with the monthly payment of Owner’s Net Distribution required under Section 9 of this Agreement, remit into Owner’s Account good faith that the amount of Net Proceeds from Sale commission charged was reasonable in relation to the value of brokerage and/or research services (as defined in Section 28(e)) provided by such broker, viewed in terms either of each Fund or Disposition of Containers accrued during such time period, and notify Ownerthe Manager’s Agent of overall responsibilities to the date and amount of such payment.Manager’s discretionary accounts;
Appears in 2 contracts
Sources: Management Agreement (Russell Exchange Traded Funds Trust), Management Agreement (Russell Exchange Traded Funds Trust)
Duties of Manager. In consideration On and after the Opening Date, the Manager shall (i) direct, supervise, manage and operate the Hotel in all aspects in an efficient and economical manner consistent with hotels of a comparable size, class and level of service having similar facilities and (ii) determine and administer the compensation programs and policies to be paid to Manager by Owner pursuant to followed in connection therewith, all in accordance with the provisions of this Agreement, and subject on the condition that Manager shall not be obligated to advance any of its own funds in connection with such duties. Without limiting the agreement generality of Owner to make payments to Manager pursuant to this Agreementthe foregoing, Manager shall provide and perform, or cause its affiliate(s) to provide and perform (provided that in such case, Manager shall remain primarily responsible), on behalf each of Owner the services set forth in this Section 5, which services shall be provided and performed during the term of this Agreement at a level or standard of care no less than the level or standard of care customarily applied by container lessors generally.following functions:
(a) In Recruit, employ, relocate, pay, supervise and discharge all employees and personnel necessary for the event of a breach of any manufacturer’s, subcontractor’s, dealer’s or other entity’s warranty as to the condition, merchantability, fitness for a particular purpose, or otherwise with respect to any or all operation of the Containers, provided that Owner has specifically authorized Hotel (included in advance in writing the expenditure foregoing shall be the determination of all fees and expenses related thereto (including but not limited to legal expensespersonnel policies), Manager agrees to pursue all reasonable actions on Owner’s behalf against said warrantors at Owner’s expense. Manager makes no independent representations or warranties to Owner with respect to the condition, merchantability, fitness for any particular purpose with respect to any such Containers and shall have no liability to Owner for any breach of any manufacturer’s, subcontractor’s, dealer’s or other entity’s warranty with respect thereto.
(b) Use good faith efforts throughout the term of this Agreement to lease the Containers to oceangoing shipping lines or other Lessees as reasonably determined by Manager in accordance with its standard credit Establish all prices, rates and collection policies charges for guest rooms, meeting rooms, commercial space (including all stores, office space and procedures which Manager normally uses with respect to other containers in Manager’s Fleetlobby space), and to manage Owner’s Fleet on a non-discriminatory basis in relation to the other containers in Manager’s Fleetfood, with respect to lease-outs, cash receipts, operating expensesbeverage, and other management services. In that regard, on a non-discriminatory basis relative to other containers in Manager’s Fleet, Manager will use salable or rentable items comprising the Hotel and its best efforts to avoid leasing all of Owner’s Fleet to one shipping linebusiness.
(c) Use good faith efforts to collect from LesseesNegotiate and enter into, on behalf of Owner, service contracts required in accordance with the terms ordinary course of any Leasebusiness in operating the Hotel including, all rental payments without limitation, contracts for electricity, gas, telephone, cable, cleaning, vermin extermination, elevator and all boiler maintenance, and other amounts due with respect to services which Manager deems advisable, on the Containers under any Leases and account for and remit those sums due to Owner as hereinafter provided. Notwithstanding the foregoing, condition that Manager shall not be required to institute legal action to collect enter into any sums due to service contract contemplated by this subsection that is not cancelable by Owner as aforesaid unless: on a maximum of ninety (i90) Manager determines to take such action to enforce such Leases with respect to *** covered by such Leases under which days prior notice without the Lessees have defaulted in their payment obligations to Manager and/or to prior written consent of Owner, or (ii) Containers constitute at least *** covered by such defaulted Lease(s), and Owner agrees to indemnify Manager with respect to such enforcement action (including with respect to claims, losses and liabilities asserted by the owners of any of the other containers in Manager’s Fleet covered by such defaulted Lease(s) including Manager itself) and to *** associated therewith including the reasonable cost of the time of Manager’s employees spent on such enforcement proceedings. *** incurred by Manager with respect to enforcement proceedings under subclause (i) which consent shall not be allocated proportionally based on the number of Containers included among the containers in Manager’s Fleet covered by such defaulted Leases, and Owner’s pro rata share thereof shall be deemed to be Operating Expenses for purposes of this Agreement. The costs and expenses incurred by Manager with respect to enforcement proceedings under subclause (ii) shall be wholly for Owner’s account and shall be deemed to be Operating Expenses for purposes of this Agreement upon Owner’s authorization to undertake such proceedings. With respect to enforcement proceedings undertaken by Manager pursuant to this subsection, Manager agrees to consult with Owner in each case in which the claims relating to Containers under such defaulted Lease can reasonably be expected to exceed *** and/or the costs relating to Containers under such defaulted Lease can reasonably be expected to exceed *** Manager further agrees to be guided in the conduct of such proceedings by the opinion of the majority in interest of all owners of containers (including the Containers) affected by such defaulted Lease, including for this purpose, Manager’s vote as owner with respect to the containers it owns for its own accountunreasonably withheld.
(d) Take such steps Negotiate and enter into, on behalf of Owner, concession agreements, leases, licenses and similar contracts for use by concessionaires, tenants, licensees and other intended users of the facilities at the Hotel, on the condition that Manager shall not enter into any agreement, lease, license or contract contemplated by this subsection that is not cancelable by Owner on a maximum of ninety (90) days prior written notice without the prior written consent of Owner, which consent shall not be unreasonably withheld.
(e) To the extent within the control of Manager, obtain and keep in full force and effect, either in its own name on behalf of Owner or in Owner’s name, as may be required by applicable laws, any and all new, renewal and additional licenses and permits necessary to ensure that enable Manager to operate the Hotel in accordance with applicable laws including, without limitation, those licenses and permits necessary for the sale of alcoholic beverages to be consumed on premises or sold in unopened containers at (i) the Hotel, (ii) any restaurant and lounge located within the Hotel, and (iii) any other usual and customary locations where alcoholic beverages are sold within the Hotel.
(f) Accord rooms to persons to whom such privileges are customarily accorded in the industry, including, without limitation, (i) employees of Manager’s parent company, pursuant to its personnel policies and subject to space availability, and (ii) such employees of Owner as Owner may from time to time designate.
(g) Establish and revise, as necessary, administrative policies and procedures including, without limitation, policies and procedures for the control of revenue and expenditures, for the purchase of Operating Equipment, Operating Supplies and services, for the control of credit, and for the scheduling of maintenance.
(h) Procure, or arrange for the procurement of, as agent for Owner, all obligations replacement Operating Equipment and duties arising under Operating Supplies necessary to maintain and operate the LeasesHotel properly in the ordinary course of business.
(i) Make or install, whether of Lessees or Managercause to be made or installed, are performed or complied with in an orderly and timely fashion; and terminate Leases under which the Lessees are in material default and recover possession of the Containers and enforce all rights of Manager and/or Owner with respect thereto, including the payment of all amounts owing under Leases or otherwise with respect to such Containers, institute and prosecute legal proceedings in the name of Owner and/or Manager as permitted by applicable laws Owner, all normal capital repairs, decorations, renewals, revisions, alterations, rebuilds, replacements, additions, and improvements in order and to terminate such Leases and/or recover possession the Hotel building and FF&E, in the ordinary course of the Containers and settle, compromise and/or release such proceedings or reinstate such Leases. Provided, howeverbusiness, that Manager may not settle any counter-claims filed against Owner without first receiving Owner’s written consent. Except as otherwise specifically provided deems necessary or appropriate for the proper operation and maintenance of the Hotel, on the condition that such items are contemplated by the Annual Business Plan for such Fiscal Year in subsection which such action is taken.
(cj) above, in determining what action to take, Arrange and ‘in performing its duties under this subsection, Manager shall be entitled to follow its standard credit contract for all advertising and collection policies and procedures promotion of the Hotel which Manager normally uses with respect to other containers in Manager’s Fleet. All costs its reasonable discretion deems necessary or appropriate for the operation of the Hotel.
(k) Open and expenses incurred maintain the Agency Account as required by Manager in performing the foregoing shall be allocated based on the number of Containers included among the containers covered by such defaulted Leases, and Owner’s share of such costs and expenses with respect to the Containers shall be deemed to be Operating Expenses for purposes of this Agreement.
(el) Cause all Containers Prepare and deliver to be maintained Owner the Annual Business Plans and repaired in the ordinary course of Manager’s business in good and safe operating condition and cause said Containers to be periodically inspected.
(f) Place and use its best efforts to maintain in effect on an “occurrence basis,” if available on commercially reasonable terms, throughout the term of this Agreement in Manager’s name a blanket insurance policy(s) covering the Containers, or an insurance policy covering all the containers in Manager’s Fleet including the Containers, under which Owner (and Owner’s lender(s) if applicable) will be named as additional insureds and loss payeesFinancial Statements, and including coverage which is at least such other information as broad in scope and as great in amount as the coverage provided by Manager for other containers of the same Type(s) in Manager’s Fleet and coverage which is generally comparable to industry practices. Attached hereto, made a part hereof and marked, “Exhibit B,” is/are (a) certificate(s) of insurance which describes the coverage which Manager has in effect on Manager’s Fleet at the time of the execution of this Agreement which coverage will be extended to all Containers upon acquisition by Owner. Manager shall provide an executed original of such certificate to Owner and Owner’s Agent upon execution of this Agreement and shall continue to provide to Owner and Owner’s Agent (and to Owner’s lender(s) if applicable) renewal certificate(s) evidencing the coverages required herein prior to the expiration of the certificate(s) in existence at the time of the execution of this Agreement. All such certificates shall provide that the insurer shall give Owner and Owner’s Agent at least 30 days prior written notice of any cancellation or material modification of the coverage. Manager shall have the right to change its existing insurance coverage on the containers in Manager’s Fleet if in Manager’s reasonable and good faith judgment such change is required due to changing costs for insurance or changing industry practices. Manager agrees to notify Owner at least 30 days in advance of any such contemplated changes in insurance coverage. If Owner wishes insurance coverage which is broader in scope and/or greater in amount than that purchased by Manager for the containers in Manager’s Fleet, then Manager will cooperate in arranging such additional coverage and Owner shall pay the incremental cost thereof. Manager will use good faith efforts to insure the Containers at their respective Stipulated Loss Values as those values vary from time to time. If Manager is unable (within the parameters set forth herein) to obtain property loss and damage coverage for the Containers which values the Containers at their respective Stipulated Loss Values as those values vary from time to time, Manager will immediately notify Owners Agent so that Owner may attempt to obtain (at Owner’s sole cost) supplemental coverage for the Containers if Owner so elects.
(g) On behalf of Owner pay all Operating Expenses including charges, assessments, and levies imposed upon or against the Containers other than charges, assessments or levies payable by and chargeable to any Lessee under any Lease or otherwise, of whatever kind or nature and, in Manager’s reasonable discretion, defend against any such charges, assessments or levies and seek revision or appeal from any charge, assessment or levy deemed improper, all such actions to be in the name of Manager or Owner or both as Manager determines in its reasonable discretion, and brought on behalf of Owner and at the expense of Owner. Provided, however, if Manager brings an action the outcome of which will directly affect containers in Manager’s Fleet owned by entities other than Owner, Owner’s responsibility for costs incurred in such actions shall be shared proportionally with the other owners on the basis of the number of affected Containers to all affected containers in Manager’s Fleet. If Owner chooses to utilize the Containers as collateral for debt financing purposes at any time while such Containers remain covered by this Agreement, Owner shall pay all sums due with respect to such financing (“Debt Capital”) in full in a timely manner, and shall indemnify Manager and any Lessee’s of the Containers from the consequences of any failure by Owner to remain in compliance with the terms of such Debt Capital.
(h) Monitor and record status and/or location and movement of the Containers and make such records available for inspection by Owner or Owner’s Agent during reasonable business hours and after reasonable notice, and allow Owner and Owner’s Agent to make photocopies thereof. Make available to Owner and Owner’s Agent for discussion and questions such of Manager’s employees as reasonably requested by Owner or Owner’s Agent during reasonable business hours.
(i) Maintain or have maintained complete and accurate books and records indicating by serial number the ownership of each Container and of transactions relating to the Containers and retain such books and records in accordance with Manager’s normal records retention policies, and will make such books and records available for inspection by Owner or Owner’s Agent during reasonable business hours and after reasonable notice, and allow Owner or Owner’s Agent to make photocopies thereof.
(j) As soon as reasonably practicable, place decals, plates and/or such other marks, legends, or decals on the Containers to indicate that such Containers are owned by Owner and that they may be subject to a security interest in favor of one or more financial institutions. Manager may also label the Containers with all of its customary labels, marks and decals and/or to indicate that they are managed by Manager. The cost of placing all such marks, legends or decals on the Containers shall be included in the Per Container Price and Total Invoice Price paid by Owner.
(k) Advise Owner with respect to the sale of any Containers and, upon request of Owner, cooperate with Owner to use good faith efforts in securing a purchaser for such Containers; provided, however, that except as expressly provided in Section 4(c), 4(d), 7, and Section 13 hereof, Manager shall not have any authority to offer for sale, contract or agree to sell, or sell any of the Containers.
(l) Upon removal of any Container from coverage under this Agreement pursuant to Section 13(a)(ii), unless such Container is sold or disposed of by Manager on behalf of Owner in accordance with Section 13(a)(ii), arrange as promptly as possible for the transportation of such Container, at Owner’s expense, in an “as is” condition to such destination as requested by the Owner.
(m) Subject to Section 13Plan, cause Capital Improvements to be made to execute and supervise repairs and maintenance at the Containers. Hotel.
(n) Concurrently Provide the Group Services.
(o) Procure and maintain insurance in accordance with Article XII.
(p) Keep Owner advised as to all major policy matters affecting the Hotel.
(q) To the extent within the control of Manager, operate the Hotel in compliance with the monthly payment Franchise Agreement and the Mortgage. Manager shall notify Owner of Owner’s Net Distribution any notice of violations of Franchise Agreement or Mortgage received by Manager.
(r) Conduct such other operations from time to time as may be required under Section 9 of this Agreement, remit into Owner’s Account the amount of Net Proceeds from Sale or Disposition of Containers accrued during such time period, and notify Owner’s Agent of the date and amount of such payment.
Appears in 2 contracts
Sources: Hotel Management Agreement (Supreme Hotel Properties, Inc.), Hotel Management Agreement (Supreme Hotel Properties, Inc.)
Duties of Manager. In consideration On and after the Contract Commencement Date, Manager shall (i) direct, supervise, manage and operate the Hotel in all aspects in an efficient and economical manner consistent with hotels of a comparable size, location, age, class and level of service having similar facilities and (ii) determine and administer the compensation programs and policies to be paid to Manager by Owner pursuant to followed in connection therewith, all in accordance with the provisions of this Agreement, and subject on the condition that Manager shall not be obligated to advance any of its own funds in connection with such duties. Without limiting the agreement generality of Owner to make payments to Manager pursuant to this Agreementthe foregoing, Manager shall provide and perform, or cause its affiliate(s) to provide and perform (provided that in such case, Manager shall remain primarily responsible), on behalf each of Owner the services set forth in this Section 5, which services shall be provided and performed during the term of this Agreement at a level or standard of care no less than the level or standard of care customarily applied by container lessors generally.following functions:
(a) In Recruit, employ, relocate, pay, supervise and discharge all employees and personnel necessary for the event of a breach of any manufacturer’s, subcontractor’s, dealer’s or other entity’s warranty as to the condition, merchantability, fitness for a particular purpose, or otherwise with respect to any or all operation of the Containers, provided that Owner has specifically authorized Hotel (included in advance in writing the expenditure foregoing shall be the determination of all fees and expenses related thereto (including but not limited to legal expensespersonnel policies), Manager agrees to pursue all reasonable actions on Owner’s behalf against said warrantors at Owner’s expense. Manager makes no independent representations or warranties to Owner with respect to the condition, merchantability, fitness for any particular purpose with respect to any such Containers and shall have no liability to Owner for any breach of any manufacturer’s, subcontractor’s, dealer’s or other entity’s warranty with respect thereto.
(b) Use good faith efforts throughout the term of this Agreement to lease the Containers to oceangoing shipping lines or other Lessees as reasonably determined by Manager in accordance with its standard credit Establish all prices, rates and collection policies charges for guest rooms, meeting rooms, commercial space (including all stores, office space and procedures which Manager normally uses with respect to other containers in Manager’s Fleetlobby space), and to manage Owner’s Fleet on a non-discriminatory basis in relation to the other containers in Manager’s Fleetfood, with respect to lease-outs, cash receipts, operating expensesbeverage, and other management services. In that regard, on a non-discriminatory basis relative to other containers in Manager’s Fleet, Manager will use salable or rentable items comprising the Hotel and its best efforts to avoid leasing all of Owner’s Fleet to one shipping linebusiness.
(c) Use good faith efforts to collect from LesseesNegotiate and enter into, on behalf of Owner, service contracts required in accordance with the terms ordinary course of any Leasebusiness in operating the Hotel including, all rental payments without limitation, contracts for electricity, gas, telephone, cable, cleaning, vermin extermination, elevator and all boiler maintenance, and other amounts due with respect to services which Manager deems advisable, on the Containers under any Leases and account for and remit those sums due to Owner as hereinafter provided. Notwithstanding the foregoing, condition that Manager shall not be required to institute legal action to collect enter into any sums due to service contract contemplated by this subsection that is not cancelable by Owner as aforesaid unless: on a maximum of ninety (i90) Manager determines to take such action to enforce such Leases with respect to *** covered by such Leases under which days prior notice and no penalty without the Lessees have defaulted in their payment obligations to Manager and/or to prior written consent of Owner, or (ii) Containers constitute at least *** covered by such defaulted Lease(s), and Owner agrees to indemnify Manager with respect to such enforcement action (including with respect to claims, losses and liabilities asserted by the owners of any of the other containers in Manager’s Fleet covered by such defaulted Lease(s) including Manager itself) and to *** associated therewith including the reasonable cost of the time of Manager’s employees spent on such enforcement proceedings. *** incurred by Manager with respect to enforcement proceedings under subclause (i) which consent shall not be allocated proportionally based on the number of Containers included among the containers in Manager’s Fleet covered by such defaulted Leases, and Owner’s pro rata share thereof shall be deemed to be Operating Expenses for purposes of this Agreement. The costs and expenses incurred by Manager with respect to enforcement proceedings under subclause (ii) shall be wholly for Owner’s account and shall be deemed to be Operating Expenses for purposes of this Agreement upon Owner’s authorization to undertake such proceedings. With respect to enforcement proceedings undertaken by Manager pursuant to this subsection, Manager agrees to consult with Owner in each case in which the claims relating to Containers under such defaulted Lease can reasonably be expected to exceed *** and/or the costs relating to Containers under such defaulted Lease can reasonably be expected to exceed *** Manager further agrees to be guided in the conduct of such proceedings by the opinion of the majority in interest of all owners of containers (including the Containers) affected by such defaulted Lease, including for this purpose, Manager’s vote as owner with respect to the containers it owns for its own accountunreasonably withheld.
(d) Take such steps Negotiate and enter into, on behalf of Owner, concession agreements, leases, licenses and similar contracts for use by concessionaires, tenants, licensees and other intended users of the facilities at the Hotel, on the condition that Manager shall not enter into any agreement, lease, license or contract contemplated by this subsection that is not cancelable by Owner on a maximum of ninety (90) days prior written notice and no penalty without the prior written consent of Owner.
(e) To the extent within the control of Manager, obtain and keep in full force and effect, either in its own name on behalf of Owner or in Owner's name, as may be required by applicable Laws, any and all new, renewal and additional licenses and permits necessary to ensure that enable Manager to operate the Hotel in accordance with applicable Laws.
(f) Accord rooms to persons to whom such privileges are customarily accorded in the industry, including, without limitation, (i) employees of Manager's parent company, pursuant to its personnel policies and subject to space availability, and (ii) such employees of Owner as Owner may from time to time designate.
(g) Establish and revise, as necessary, administrative policies and procedures including, without limitation, policies and procedures for the control of revenue and expenditures, for the purchase of Operating Equipment, Operating Supplies and services, for the control of credit, and for the scheduling of maintenance.
(h) In accordance with the Annual Business Plan procure, or arrange for the procurement of, as agent for Owner, all obligations replacement Operating Equipment and duties arising under Operating Supplies necessary to maintain and operate the LeasesHotel properly in the ordinary course of business.
(i) Make or install, whether of Lessees or Managercause to be made or installed, are performed or complied with in an orderly and timely fashion; and terminate Leases under which the Lessees are in material default and recover possession of the Containers and enforce all rights of Manager and/or Owner with respect thereto, including the payment of all amounts owing under Leases or otherwise with respect to such Containers, institute and prosecute legal proceedings in the name of Owner and/or Manager as permitted by applicable laws Owner, all normal capital repairs, decorations, renewals, revisions, alterations, rebuilds, replacements, additions, and improvements in order and to terminate such Leases and/or recover possession the Hotel building and FF&E, in the ordinary course of the Containers and settle, compromise and/or release such proceedings or reinstate such Leases. Provided, howeverbusiness, that Manager may not settle any counter-claims filed against Owner without first receiving Owner’s written consent. Except as otherwise specifically provided deems necessary or appropriate for the proper operation and maintenance of the Hotel, on the condition that such items are contemplated by the Annual Business Plan for such Fiscal Year in subsection which such action is taken.
(cj) above, in determining what action to take, Arrange and ‘in performing its duties under this subsection, Manager shall be entitled to follow its standard credit contract for all advertising and collection policies and procedures promotion of the Hotel which Manager normally uses with respect to other containers in Manager’s Fleet. All costs its reasonable discretion deems necessary or appropriate for the operation of the Hotel.
(k) Open and expenses incurred maintain the Agency Account as required by Manager in performing the foregoing shall be allocated based on the number of Containers included among the containers covered by such defaulted Leases, and Owner’s share of such costs and expenses with respect to the Containers shall be deemed to be Operating Expenses for purposes of this Agreement.
(el) Cause all Containers Prepare and deliver to be maintained Owner the Annual Business Plans and repaired in the ordinary course of Manager’s business in good and safe operating condition and cause said Containers to be periodically inspected.
(f) Place and use its best efforts to maintain in effect on an “occurrence basis,” if available on commercially reasonable terms, throughout the term of this Agreement in Manager’s name a blanket insurance policy(s) covering the Containers, or an insurance policy covering all the containers in Manager’s Fleet including the Containers, under which Owner (and Owner’s lender(s) if applicable) will be named as additional insureds and loss payeesFinancial Statements, and including coverage which is at least such other information as broad in scope and as great in amount as the coverage provided by Manager for other containers of the same Type(s) in Manager’s Fleet and coverage which is generally comparable to industry practices. Attached hereto, made a part hereof and marked, “Exhibit B,” is/are (a) certificate(s) of insurance which describes the coverage which Manager has in effect on Manager’s Fleet at the time of the execution of this Agreement which coverage will be extended to all Containers upon acquisition by Owner. Manager shall provide an executed original of such certificate to Owner and Owner’s Agent upon execution of this Agreement and shall continue to provide to Owner and Owner’s Agent (and to Owner’s lender(s) if applicable) renewal certificate(s) evidencing the coverages required herein prior to the expiration of the certificate(s) in existence at the time of the execution of this Agreement. All such certificates shall provide that the insurer shall give Owner and Owner’s Agent at least 30 days prior written notice of any cancellation or material modification of the coverage. Manager shall have the right to change its existing insurance coverage on the containers in Manager’s Fleet if in Manager’s reasonable and good faith judgment such change is required due to changing costs for insurance or changing industry practices. Manager agrees to notify Owner at least 30 days in advance of any such contemplated changes in insurance coverage. If Owner wishes insurance coverage which is broader in scope and/or greater in amount than that purchased by Manager for the containers in Manager’s Fleet, then Manager will cooperate in arranging such additional coverage and Owner shall pay the incremental cost thereof. Manager will use good faith efforts to insure the Containers at their respective Stipulated Loss Values as those values vary from time to time. If Manager is unable (within the parameters set forth herein) to obtain property loss and damage coverage for the Containers which values the Containers at their respective Stipulated Loss Values as those values vary from time to time, Manager will immediately notify Owners Agent so that Owner may attempt to obtain (at Owner’s sole cost) supplemental coverage for the Containers if Owner so elects.
(g) On behalf of Owner pay all Operating Expenses including charges, assessments, and levies imposed upon or against the Containers other than charges, assessments or levies payable by and chargeable to any Lessee under any Lease or otherwise, of whatever kind or nature and, in Manager’s reasonable discretion, defend against any such charges, assessments or levies and seek revision or appeal from any charge, assessment or levy deemed improper, all such actions to be in the name of Manager or Owner or both as Manager determines in its reasonable discretion, and brought on behalf of Owner and at the expense of Owner. Provided, however, if Manager brings an action the outcome of which will directly affect containers in Manager’s Fleet owned by entities other than Owner, Owner’s responsibility for costs incurred in such actions shall be shared proportionally with the other owners on the basis of the number of affected Containers to all affected containers in Manager’s Fleet. If Owner chooses to utilize the Containers as collateral for debt financing purposes at any time while such Containers remain covered by this Agreement, Owner shall pay all sums due with respect to such financing (“Debt Capital”) in full in a timely manner, and shall indemnify Manager and any Lessee’s of the Containers from the consequences of any failure by Owner to remain in compliance with the terms of such Debt Capital.
(h) Monitor and record status and/or location and movement of the Containers and make such records available for inspection by Owner or Owner’s Agent during reasonable business hours and after reasonable notice, and allow Owner and Owner’s Agent to make photocopies thereof. Make available to Owner and Owner’s Agent for discussion and questions such of Manager’s employees as reasonably requested by Owner or Owner’s Agent during reasonable business hours.
(i) Maintain or have maintained complete and accurate books and records indicating by serial number the ownership of each Container and of transactions relating to the Containers and retain such books and records in accordance with Manager’s normal records retention policies, and will make such books and records available for inspection by Owner or Owner’s Agent during reasonable business hours and after reasonable notice, and allow Owner or Owner’s Agent to make photocopies thereof.
(j) As soon as reasonably practicable, place decals, plates and/or such other marks, legends, or decals on the Containers to indicate that such Containers are owned by Owner and that they may be subject to a security interest in favor of one or more financial institutions. Manager may also label the Containers with all of its customary labels, marks and decals and/or to indicate that they are managed by Manager. The cost of placing all such marks, legends or decals on the Containers shall be included in the Per Container Price and Total Invoice Price paid by Owner.
(k) Advise Owner with respect to the sale of any Containers and, upon request of Owner, cooperate with Owner to use good faith efforts in securing a purchaser for such Containers; provided, however, that except as expressly provided in Section 4(c), 4(d), 7, and Section 13 hereof, Manager shall not have any authority to offer for sale, contract or agree to sell, or sell any of the Containers.
(l) Upon removal of any Container from coverage under this Agreement pursuant to Section 13(a)(ii), unless such Container is sold or disposed of by Manager on behalf of Owner in accordance with Section 13(a)(ii), arrange as promptly as possible for the transportation of such Container, at Owner’s expense, in an “as is” condition to such destination as requested by the Owner.
(m) Subject to Section 13Plan, cause Capital Improvements to execute and supervise repairs and maintenance at the Hotel, but all related capital expenditures in the aggregate in excess of $10,000 shall be made to the Containers. implemented by, or on behalf of, Owner.
(n) Concurrently Provide the Group Services.
(o) Procure and maintain insurance in accordance with ARTICLE VII.
(p) Keep Owner advised as to all major policy matters affecting the Hotel.
(q) To the extent within the control of Manager, operate the Hotel in compliance with the monthly payment Franchise Agreement and the Mortgage. Manager shall notify Owner within five (5) business days of Owner’s Net Distribution any notice of violations of Franchise Agreement or Mortgage received by Manager.
(r) Conduct such other operations from time to time as may be required under Section 9 of this Agreement, remit into Owner’s Account the amount of Net Proceeds from Sale or Disposition of Containers accrued during such time period, and notify Owner’s Agent of the date and amount of such payment.
Appears in 1 contract
Sources: Hotel Management Agreement (Lodging Fund REIT III, Inc.)
Duties of Manager. In consideration of the compensation to be paid to 3.1 Manager by Owner pursuant to this Agreementshall, and subject to the agreement of Owner to make payments to Manager pursuant to this Agreement, Manager shall provide and perform, or cause its affiliate(s) to provide and perform (provided that in such case, Manager shall remain primarily responsible), on behalf of Owner the services set forth in this Section 5, which services shall be provided and performed during the term of this Agreement at a level or standard of care no less than the level or standard of care customarily applied by container lessors generally.
(a) In the event of a breach of any manufacturer’s, subcontractor’s, dealer’s or other entity’s warranty as to the condition, merchantability, fitness for a particular purpose, or otherwise with respect to any or all of the Containers, provided that Owner has specifically authorized in advance in writing the expenditure of all fees and expenses related thereto (including but not limited to legal expenses), Manager agrees to pursue all reasonable actions on Owner’s behalf against said warrantors at Owner’s expense. Manager makes no independent representations or warranties to Owner with respect to the condition, merchantability, fitness for any particular purpose with respect to any such Containers and shall have no liability to Owner for any breach of any manufacturer’s, subcontractor’s, dealer’s or other entity’s warranty with respect thereto.
(b) Use good faith efforts throughout the term of this Agreement to lease the Containers to oceangoing shipping lines or other Lessees as reasonably determined by Manager in accordance with its standard credit and collection policies and procedures which Manager normally uses with respect to other containers in Manager’s Fleet, and to manage Owner’s Fleet on a non-discriminatory basis in relation to the other containers in Manager’s Fleet, with respect to lease-outs, cash receipts, operating expenses, and other management services. In that regard, on a non-discriminatory basis relative to other containers in Manager’s Fleet, Manager will use its best efforts to avoid leasing all of Owner’s Fleet to one shipping line.
(c) Use good faith efforts to collect from Lessees, in accordance with the terms of any Lease, all rental payments and all other amounts due with respect to the Containers under any Leases and account for and remit those sums due to Owner as hereinafter provided. Notwithstanding the foregoing, Manager shall not be required to institute legal action to collect any sums due to Owner as aforesaid unless: (i) Manager determines to take such action to enforce such Leases with respect to *** covered by such Leases under which the Lessees have defaulted in their payment obligations to Manager and/or to Owner, or (ii) Containers constitute at least *** covered by such defaulted Lease(s), and Owner agrees to indemnify Manager with respect to such enforcement action (including with respect to claims, losses and liabilities asserted by the owners of any of the other containers in Manager’s Fleet covered by such defaulted Lease(s) including Manager itself) and to *** associated therewith including the reasonable cost of the time of Manager’s employees spent on such enforcement proceedings. *** incurred by Manager with respect to enforcement proceedings under subclause (i) shall be allocated proportionally based on the number of Containers included among the containers in Manager’s Fleet covered by such defaulted Leases, and Owner’s pro rata share thereof shall be deemed to be Operating Expenses for purposes of this Agreement. The costs and expenses incurred by Manager with respect to enforcement proceedings under subclause (ii) shall be wholly for Owner’s account and shall be deemed to be Operating Expenses for purposes of this Agreement upon Owner’s authorization to undertake such proceedings. With respect to enforcement proceedings undertaken by Manager pursuant to this subsection, Manager agrees to consult with Owner in each case in which the claims relating to Containers under such defaulted Lease can reasonably be expected to exceed *** and/or the costs relating to Containers under such defaulted Lease can reasonably be expected to exceed *** Manager further agrees to be guided in the conduct of such proceedings by the opinion of the majority in interest of all owners of containers (including the Containers) affected by such defaulted Lease, including for this purpose, Manager’s vote as owner with respect to the containers it owns for its own account.
(d) Take such steps as may be required to ensure that all obligations and duties arising under the Leases, whether of Lessees or Manager, are performed or complied with in an orderly and timely fashion; and terminate Leases under which the Lessees are in material default and recover possession of the Containers and enforce all rights of Manager and/or Owner with respect thereto, including the payment of all amounts owing under Leases or otherwise with respect to such Containers, institute and prosecute legal proceedings in the name of Owner and/or Manager as permitted by applicable laws in order to terminate such Leases and/or recover possession of the Containers and settle, compromise and/or release such proceedings or reinstate such Leases. Provided, however, that Manager may not settle any counter-claims filed against Owner without first receiving Owner’s written consent. Except as otherwise specifically provided in subsection (c) above, in determining what action to take, and ‘in performing its duties under this subsection, Manager shall be entitled to follow its standard credit and collection policies and procedures which Manager normally uses with respect to other containers in Manager’s Fleet. All costs and expenses incurred by Manager in performing the foregoing shall be allocated based on the number of Containers included among the containers covered by such defaulted Leases, and Owner’s share of such costs and expenses with respect to the Containers shall be deemed to be Operating Expenses for purposes of this Agreement.
(e) Cause all Containers to be maintained and repaired in the ordinary course of Manager’s business in good and safe operating condition and cause said Containers to be periodically inspected.
(f) Place and use its best efforts to maintain in effect on an “occurrence basis,” if available on commercially reasonable terms, throughout the term of this Agreement in Manager’s name a blanket insurance policy(s) covering the Containers, or an insurance policy covering all the containers in Manager’s Fleet including the Containers, under which Owner (and Owner’s lender(s) if applicable) will be named as additional insureds and loss payees, and including coverage which is at least as broad in scope and as great in amount as the coverage provided by Manager for other containers of the same Type(s) in Manager’s Fleet and coverage which is generally comparable to industry practices. Attached hereto, made a part hereof and marked, “Exhibit B,” is/are (a) certificate(s) of insurance which describes the coverage which Manager has in effect on Manager’s Fleet at the time of the execution of this Agreement which coverage will be extended to all Containers upon acquisition by Owner. Manager shall provide an executed original of such certificate to Owner and Owner’s Agent upon execution of this Agreement and shall continue to provide to Owner and Owner’s Agent (and to Owner’s lender(s) if applicable) renewal certificate(s) evidencing the coverages required herein prior to the expiration of the certificate(s) in existence at the time of the execution of this Agreement. All such certificates shall provide that the insurer shall give Owner and Owner’s Agent at least 30 days prior written notice of any cancellation or material modification of the coverage. Manager shall have the right to change its existing insurance coverage on the containers in Manager’s Fleet if in Manager’s reasonable and good faith judgment such change is required due to changing costs for insurance or changing industry practices. Manager agrees to notify Owner at least 30 days in advance of any such contemplated changes in insurance coverage. If Owner wishes insurance coverage which is broader in scope and/or greater in amount than that purchased by Manager for the containers in Manager’s Fleet, then Manager will cooperate in arranging such additional coverage and Owner shall pay the incremental cost thereof. Manager will use good faith efforts to insure the Containers at their respective Stipulated Loss Values as those values vary from time to time. If Manager is unable (within the parameters set forth herein) to obtain property loss and damage coverage for the Containers which values the Containers at their respective Stipulated Loss Values as those values vary from time to time, Manager will immediately notify Owners Agent so that Owner may attempt to obtain (at Owner’s sole cost) supplemental coverage for the Containers if Owner so elects.
(g) On behalf of Owner pay all Operating Expenses including charges, assessments, and levies imposed upon or against the Containers other than charges, assessments or levies payable by and chargeable to any Lessee under any Lease or otherwise, of whatever kind or nature and, in Manager’s reasonable discretion, defend against any such charges, assessments or levies and seek revision or appeal from any charge, assessment or levy deemed improper, all such actions to be in the name of Manager or Owner or both but as Manager determines in its reasonable discretion, agent for and brought on behalf of Owner XTRA International, manage and at administer the expense Containers in the XTRA International Fleet, arrange the leasing and enter into Leases of Ownersuch Containers, and administer such Leases. Provided, however, if Manager brings an action Without prejudice to the outcome of which will directly affect containers in Manager’s Fleet owned by entities other than Owner, Owner’s responsibility for costs incurred in such actions shall be shared proportionally with the other owners on the basis generality of the number foregoing Manager shall:
(a) decide the identity of affected Containers to all affected containers in Manager’s Fleet. If Owner chooses to utilize each Lessee, the Containers as collateral for debt financing purposes at any time while such Containers remain covered by this Agreementperiod of the Lease, Owner shall pay all the rental or other sums due with respect to such financing (“Debt Capital”) in full in a timely mannerpayable thereunder, and the form and content of the Lease, and seek Lessees and enter into Leases as lessor in the name of Manager; in doing so, Manager shall indemnify Manager and any Lessee’s use commercially reasonable efforts to provide for the lease of the Containers in the XTRA International Fleet on such terms as are commercially reasonable, to financially responsible Lessees as determined at the time such Lessees enter into the Leases;
(b) perform on behalf of XTRA International the obligations of the lessor under the Leases;
(c) exercise all rights of the lessor under the Leases, including, without limitation, the invoicing and collection of rental and other payments due from the consequences of Lessees;
(d) take any failure actions Manager deems necessary to ensure compliance by Owner to remain in compliance Lessees with the terms of their Leases;
(e) log interchanges of Containers in the XTRA International Fleet including the return and issue of such Debt Capital.Containers from depots;
(f) inspect, repair, maintain, service and store Containers in the XTRA International Fleet to the highest of the following standards: (a) those required under industry convention or governmental law or regulation; (b) those required by the terms of any insurance policy provided by Manager under which the Containers are insured, and (c) those of prudent companies in the same industry;
(g) sell Containers in the XTRA International Fleet, outright or through a Finance Lease, in accordance with either (i) Manager's sell/repair decision-making procedures that are from time to time in effect, a current version of which is attached as Schedule 8 hereto ---------- (provided, that Manager notifies XTRA International as to any material --------- changes to its sell/repair decision-making procedures) or, at XTRA International's option, (ii) any sell/repair policies established by XTRA International (provided, that (A) such policies shall be -------- established in a general form which shall not obligate Manager to seek individual approval of XTRA International for the sale of each Container in the XTRA International Fleet; (B) XTRA International shall consult with Manager prior to establishing any such policies; (C) such policies shall not materially decrease what would otherwise have been the rate of sale of Containers in the XTRA International Fleet by Manager, and (D) if such policies would have a material adverse effect on the utilization rate of such Containers, Manager shall have consented to such policies); and
(h) Monitor and record status and/or location and movement obtain insurance in respect of the Containers and make such records available for inspection by Owner any matters which Manager considers necessary or Owner’s Agent during reasonable business hours and after reasonable noticeprudent, and allow Owner and Owner’s Agent to make photocopies thereof. Make available to Owner and Owner’s Agent for discussion and questions such of Manager’s employees as reasonably requested by Owner or Owner’s Agent during reasonable business hoursincluding, without limitation, public liability insurance.
(i) Maintain or have maintained complete 3.2 In performing its duties pursuant to this Agreement and accurate books and records indicating by serial number providing the ownership of each Container and of transactions relating to services described herein, Manager shall operate the Containers and retain such books and records XTRA International Fleet in accordance with Manager’s normal records retention policiesreasonable business practice and, except as described in Clause 3.1(g)(ii), without preference to ownership thereof, and, except as described in Clause 3.1(g)(ii), no preference will be afforded to or against the XTRA International Fleet. Without limiting the foregoing, Manager shall, in performing its duties hereunder, use a degree of care and diligence no less than that which it uses in leasing, maintenance and operation of Containers owned or operated by Manager for its own account or for the account of any third parties including Affiliates, and will make such books and records available for inspection by Owner in no event less than that which a reasonably prudent owner or Owner’s Agent during reasonable business hours and after reasonable notice, and allow Owner or Owner’s Agent to make photocopies thereofoperator of Containers would use under the circumstances.
(j) As soon as reasonably practicable, place decals, plates and/or 3.3 XTRA International may request that Manager purchase Containers on behalf of XTRA International. Such request shall be made in writing and contain all information necessary or appropriate to enable Manager to carry out such other marks, legends, or decals on the Containers to indicate that such Containers are owned by Owner and that they may be subject to a security interest in favor of one or more financial institutionsrequest. Manager in its sole discretion may also label the Containers with all of its customary labels, marks and decals and/or to indicate that they are managed by Manager. The cost of placing all such marks, legends either accept or decals on the Containers shall be included in the Per Container Price and Total Invoice Price paid by Owner.
(k) Advise Owner with respect to the sale of any Containers and, upon request of Owner, cooperate with Owner to use good faith efforts in securing a purchaser for such Containersreject XTRA International's request; provided, however, that except as expressly provided in Section 4(c), 4(d), 7, and Section 13 hereofwith respect -------- ------- to Containers which Manager elects to purchase for the XTRA International Fleet, Manager shall not have any authority to offer for sale, contract or agree to sell, or sell any is bound by and will observe the equipment acquisition policy imposed on the General Partners as described in the last full paragraph of page 19 of the Containers.
(l) Upon removal of any Container from coverage under this Agreement pursuant to Section 13(a)(ii)Prospectus for Textainer Equipment Income Fund VI, unless such Container is sold or disposed of by Manager on behalf of Owner in accordance with Section 13(a)(ii)L.P. dated May 10, arrange as promptly as possible for the transportation 1996. A copy of such Container, at Owner’s expense, in an “as is” condition to such destination as requested by the Owner.
(m) Subject to Section 13, cause Capital Improvements to be made to the Containers. (n) Concurrently with the monthly payment of Owner’s Net Distribution required under Section 9 of this Agreement, remit into Owner’s Account the amount of Net Proceeds from Sale or Disposition of Containers accrued during such time period, and notify Owner’s Agent section of the date and amount of such payment.Prospectus is attached hereto as Schedule 2. ----------
Appears in 1 contract
Sources: Equipment Management Services Agreement (Xtra Corp /De/)
Duties of Manager. In consideration of the compensation to be paid to Manager by Owner pursuant to this Agreement, and subject to the agreement of Owner to make payments to Manager pursuant to this Agreement, Manager shall provide and perform, or cause its affiliate(s) to provide and perform (provided that in such case, Manager shall remain primarily responsible), on behalf of Owner the services set forth in this Section 5, which services shall be provided and performed during the term of this Agreement at a level or standard of care no less than the level or standard of care customarily applied by container lessors generally.
(a) In the event of a breach of any manufacturer’s, subcontractor’s, dealer’s or other entity’s warranty as Subject to the condition, merchantability, fitness for a particular purpose, or otherwise with respect to any or all general supervision of the ContainersBoard, provided that Owner has specifically authorized in advance in writing the expenditure Manager shall manage the investment operations of all fees each Fund and expenses related thereto (the composition of each Fund’s assets, including but not limited to legal expenses)the purchase, Manager agrees to pursue all reasonable actions on Owner’s behalf against said warrantors at Owner’s expense. Manager makes no independent representations or warranties to Owner with respect to the condition, merchantability, fitness for any particular purpose with respect to any such Containers retention and shall have no liability to Owner for any breach of any manufacturer’s, subcontractor’s, dealer’s or other entity’s warranty with respect thereto.
(b) Use good faith efforts throughout the term of this Agreement to lease the Containers to oceangoing shipping lines or other Lessees as reasonably determined by Manager in accordance with its standard credit and collection policies and procedures which Manager normally uses with respect to other containers in Manager’s Fleet, and to manage Owner’s Fleet on a non-discriminatory basis in relation to the other containers in Manager’s Fleet, with respect to lease-outs, cash receipts, operating expenses, and other management servicesdisposition thereof. In that this regard, on a non-discriminatory basis relative to other containers in the Manager’s Fleet, Manager will use its best efforts to avoid leasing all of Owner’s Fleet to one shipping line.:
(c) Use good faith efforts to collect from Lessees, in accordance with the terms of any Lease, all rental payments and all other amounts due with respect to the Containers under any Leases and account for and remit those sums due to Owner as hereinafter provided. Notwithstanding the foregoing, Manager shall not be required to institute legal action to collect any sums due to Owner as aforesaid unless: (i) Manager determines to take such action to enforce such Leases with respect to *** covered by such Leases under which the Lessees have defaulted in their payment obligations to Manager and/or to Owner, or (ii) Containers constitute at least *** covered by such defaulted Lease(s), and Owner agrees to indemnify Manager with respect to such enforcement action (including with respect to claims, losses and liabilities asserted by the owners of any of the other containers in Manager’s Fleet covered by such defaulted Lease(s) including Manager itself) and to *** associated therewith including the reasonable cost of the time of Manager’s employees spent on such enforcement proceedings. *** incurred by Manager with respect to enforcement proceedings under subclause (i) shall be allocated proportionally based on provide supervision of each Fund’s assets, furnish a continuous investment program for each Fund in accordance with each Fund’s Prospectus and Statement of Additional Information (“SAI”) included as part of the number of Containers included among Trust’s registration statement filed with the containers in Manager’s Fleet covered by such defaulted LeasesSEC, and Owner’s pro rata share thereof shall be deemed to be Operating Expenses for purposes of this Agreement. The costs and expenses incurred by Manager with respect to enforcement proceedings under subclause (ii) shall be wholly for Owner’s account and shall be deemed to be Operating Expenses for purposes of this Agreement upon Owner’s authorization to undertake such proceedings. With respect to enforcement proceedings undertaken by Manager pursuant to this subsectiondetermine, Manager agrees to consult with Owner in each case in which the claims relating to Containers under such defaulted Lease can reasonably be expected to exceed *** and/or the costs relating to Containers under such defaulted Lease can reasonably be expected to exceed *** Manager further agrees to be guided in the conduct of such proceedings by the opinion of the majority in interest of all owners of containers (including the Containers) affected by such defaulted Lease, including for this purpose, Manager’s vote as owner with respect to the containers it owns for its own account.
(d) Take such steps as may be required to ensure that all obligations and duties arising under the Leases, whether of Lessees or Manager, are performed or complied with in an orderly and timely fashion; and terminate Leases under which the Lessees are in material default and recover possession of the Containers and enforce all rights of Manager and/or Owner with respect thereto, including the payment of all amounts owing under Leases or otherwise with respect to such Containers, institute and prosecute legal proceedings in the name of Owner and/or Manager as permitted by applicable laws in order to terminate such Leases and/or recover possession of the Containers and settle, compromise and/or release such proceedings or reinstate such Leases. Provided, however, that Manager may not settle any counter-claims filed against Owner without first receiving Owner’s written consent. Except as otherwise specifically provided in subsection (c) above, in determining what action to take, and ‘in performing its duties under this subsection, Manager shall be entitled to follow its standard credit and collection policies and procedures which Manager normally uses with respect to other containers in Manager’s Fleet. All costs and expenses incurred by Manager in performing the foregoing shall be allocated based on the number of Containers included among the containers covered by such defaulted Leases, and Owner’s share of such costs and expenses with respect to the Containers shall be deemed to be Operating Expenses for purposes of this Agreement.
(e) Cause all Containers to be maintained and repaired in the ordinary course of Manager’s business in good and safe operating condition and cause said Containers to be periodically inspected.
(f) Place and use its best efforts to maintain in effect on an “occurrence basis,” if available on commercially reasonable terms, throughout the term of this Agreement in Manager’s name a blanket insurance policy(s) covering the Containers, or an insurance policy covering all the containers in Manager’s Fleet including the Containers, under which Owner (and Owner’s lender(s) if applicable) will be named as additional insureds and loss payees, and including coverage which is at least as broad in scope and as great in amount as the coverage provided by Manager for other containers of the same Type(s) in Manager’s Fleet and coverage which is generally comparable to industry practices. Attached hereto, made a part hereof and marked, “Exhibit B,” is/are (a) certificate(s) of insurance which describes the coverage which Manager has in effect on Manager’s Fleet at the time of the execution of this Agreement which coverage will be extended to all Containers upon acquisition by Owner. Manager shall provide an executed original of such certificate to Owner and Owner’s Agent upon execution of this Agreement and shall continue to provide to Owner and Owner’s Agent (and to Owner’s lender(s) if applicable) renewal certificate(s) evidencing the coverages required herein prior to the expiration of the certificate(s) in existence at the time of the execution of this Agreement. All such certificates shall provide that the insurer shall give Owner and Owner’s Agent at least 30 days prior written notice of any cancellation or material modification of the coverage. Manager shall have the right to change its existing insurance coverage on the containers in Manager’s Fleet if in Manager’s reasonable and good faith judgment such change is required due to changing costs for insurance or changing industry practices. Manager agrees to notify Owner at least 30 days in advance of any such contemplated changes in insurance coverage. If Owner wishes insurance coverage which is broader in scope and/or greater in amount than that purchased by Manager for the containers in Manager’s Fleet, then Manager will cooperate in arranging such additional coverage and Owner shall pay the incremental cost thereof. Manager will use good faith efforts to insure the Containers at their respective Stipulated Loss Values as those values vary from time to time. If Manager is unable (within the parameters set forth herein) to obtain property loss and damage coverage for the Containers which values the Containers at their respective Stipulated Loss Values as those values vary from time to time, what investments or securities will be purchased, retained or sold by each Fund and what portion of the assets of each Fund will be invested or held uninvested as cash;
(ii) shall provide periodic reports to the Trust’s Board of Trustees concerning the Manager’s discharge of its duties and responsibilities under this Agreement as the Board of Trustees shall reasonably request;
(iii) shall vote, or in accordance with the Manager’s proxy voting policies, procedures and guidelines cause to be voted, proxies, exercise consents, and exercise all other rights appertaining to securities and assets held by each Fund in accordance with the voting policies and procedures approved by the Board;
(iv) shall, as appropriate, select broker-dealers to execute portfolio transactions for each Fund. All purchase and sale orders will be placed with broker-dealers who are selected by the Manager will immediately notify Owners Agent so that Owner may attempt as able to obtain (at Owner’s sole cost) supplemental coverage provide “best execution” of such orders for the Containers if Owner so elects.
Funds. However, this responsibility shall not be deemed to obligate the Manager to solicit competitive bids for each transaction. The Manager agrees that it will not execute any portfolio transactions with a broker or dealer which is an “affiliated person” (g) On behalf of Owner pay all Operating Expenses including charges, assessments, and levies imposed upon or against the Containers other than charges, assessments or levies payable by and chargeable to any Lessee under any Lease or otherwise, of whatever kind or nature and, in Manager’s reasonable discretion, defend against any such charges, assessments or levies and seek revision or appeal from any charge, assessment or levy deemed improper, all such actions to be as defined in the name ▇▇▇▇ ▇▇▇) of the Manager except pursuant to the Trust’s Board-approved 17e-1 Policies and Procedures for Affiliated Brokerage Transactions. “Best execution” shall mean prompt and reliable execution at the most favorable securities price, taking into account the other provisions hereinafter set forth. Whenever the Manager places orders, or Owner directs the placement of orders, for the purchase or both as Manager determines in its reasonable discretion, and brought sale of portfolio securities on behalf of Owner and at each Fund, in selecting brokers or dealers to execute such orders, the expense of Owner. ProvidedManager is expressly authorized to consider the fact that a broker or dealer has furnished statistical, however, if Manager brings an action research or other information or services that may enhance the outcome of which will directly affect containers in Manager’s Fleet owned by entities other than Owner, Owner’s responsibility for costs incurred in such actions shall be shared proportionally with the other owners on the basis of the number of affected Containers to all affected containers in Manager’s Fleetresearch and portfolio management capability generally. If Owner chooses to utilize the Containers as collateral for debt financing purposes at any time while such Containers remain covered by this Agreement, Owner shall pay all sums due with respect to such financing (“Debt Capital”) in full in a timely manner, and shall indemnify Manager and any Lessee’s of the Containers from the consequences of any failure by Owner to remain in compliance with the terms of such Debt Capital.
(h) Monitor and record status and/or location and movement of the Containers and make such records available for inspection by Owner or Owner’s Agent during reasonable business hours and after reasonable notice, and allow Owner and Owner’s Agent to make photocopies thereof. Make available to Owner and Owner’s Agent for discussion and questions such of Manager’s employees as reasonably requested by Owner or Owner’s Agent during reasonable business hours.
(i) Maintain or have maintained complete and accurate books and records indicating by serial number the ownership of each Container and of transactions relating to the Containers and retain such books and records in accordance with Manager’s normal records retention policies, and will make such books and records available for inspection by Owner or Owner’s Agent during reasonable business hours and after reasonable notice, and allow Owner or Owner’s Agent to make photocopies thereof.
(j) As soon as reasonably practicable, place decals, plates and/or such other marks, legends, or decals on the Containers to indicate that such Containers are owned by Owner and that they may be subject to a security interest in favor of one or more financial institutions. Manager may also label the Containers with all of its customary labels, marks and decals and/or to indicate that they are managed by Manager. The cost of placing all such marks, legends or decals on the Containers shall be included in the Per Container Price and Total Invoice Price paid by Owner.
(k) Advise Owner with respect to the sale of any Containers and, upon request of Owner, cooperate with Owner to use good faith efforts in securing a purchaser for such Containers; provided, however, that except as expressly provided in Section 4(c), 4(d), 7, and Section 13 hereof, Manager shall not have any authority to offer for sale, contract or agree to sell, or sell any of the Containers.
(l) Upon removal of any Container from coverage under this Agreement pursuant to Section 13(a)(ii), unless such Container It is sold or disposed of by Manager on behalf of Owner further understood in accordance with Section 13(a)(ii28(e) of Securities Exchange Act of 1934 Act, amended (“1934 Act”), arrange as promptly as possible that the Manager may use a broker whose commissions on transactions may exceed the commissions that another broker would have charged for effecting the transportation of such Containertransactions, at Owner’s expense, provided that the Manager determines in an “as is” condition to such destination as requested by the Owner.
(m) Subject to Section 13, cause Capital Improvements to be made to the Containers. (n) Concurrently with the monthly payment of Owner’s Net Distribution required under Section 9 of this Agreement, remit into Owner’s Account good faith that the amount of Net Proceeds from Sale commission charged was reasonable in relation to the value of brokerage and/or research services (as defined in Section 28(e)) provided by such broker, viewed in terms either of each Fund or Disposition of Containers accrued during such time period, and notify Ownerthe Manager’s Agent of overall responsibilities to the date and amount of such payment.Manager’s discretionary accounts;
Appears in 1 contract
Duties of Manager. In consideration MANAGER is hereby authorized and directed by OWNER to do all of the compensation to be paid to Manager by Owner pursuant to this Agreementfollowing and agrees, and subject to the agreement of Owner to make payments to Manager pursuant to this Agreement, Manager shall provide and perform, or cause its affiliate(s) to provide and perform (provided that in such case, Manager shall remain primarily responsible), each case on behalf of Owner and at the services set forth in this Section 5expense of OWNER, which services shall be provided and performed during the term of this Agreement at a level or standard of care no less than the level or standard of care customarily applied by container lessors generally.to:
(a) In supervise and direct the event of a breach of any manufacturer’s, subcontractor’s, dealer’s or other entity’s warranty as to the condition, merchantability, fitness for a particular purpose, or otherwise with respect to any or all general operations of the Containers, provided that Owner has specifically authorized in advance in writing the expenditure of all fees Plant and expenses related thereto (including but not limited to legal expenses), Manager agrees to pursue all reasonable actions on Owner’s behalf against said warrantors at Owner’s expense. Manager makes no independent representations or warranties to Owner with respect to the condition, merchantability, fitness for any particular purpose with respect to any such Containers operate it efficiently and shall have no liability to Owner for any breach of any manufacturer’s, subcontractor’s, dealer’s or other entity’s warranty with respect thereto.effectively;
(b) Use good faith efforts throughout hire, pay, supervise and discharge all employees necessary to properly maintain and operate the term of this Agreement to lease the Containers to oceangoing shipping lines or other Lessees as reasonably determined by Manager Plant in accordance with its standard credit OWNER's terms and collection policies and procedures conditions of employment, provided, however, that MANAGER shall obtain the approval of OWNER prior to reassigning or terminating the Plant Controller, which Manager normally uses with respect to other containers in Manager’s Fleetapproval shall not be unreasonably withheld, and cause to manage Owner’s Fleet on a non-discriminatory basis be prepared and timely filed and paid all necessary returns, forms and payments in relation to the other containers in Manager’s Fleetconnection with unemployment insurance, with respect to lease-outswithholding, cash receipts, operating expenses, social security and other management services. In that regardlike benefits and taxes, on a non-discriminatory basis relative all such employees to other containers in Manager’s Fleetbe employees of OWNER and not of MANAGER (notwithstanding the above, Manager will use its best efforts OWNER shall retain the right to avoid leasing all unilaterally terminate the services of Owner’s Fleet to one shipping line.the Plant Controller);
(c) Use good faith efforts prepare or cause to collect from Lesseesbe prepared for review and approval of OWNER an annual operating budget setting forth the anticipated income and expenses for the Plant for the ensuing year, in accordance with a comparison of such budget to the terms income and expenses of the preceding and current years, and any Lease, all rental payments and all other amounts due required explanations with respect to the Containers under any Leases and account for and remit those sums due to Owner as hereinafter provided. Notwithstanding the foregoing, Manager shall not be required to institute legal action to collect any sums due to Owner as aforesaid unless: (i) Manager determines to take such action to enforce such Leases with respect to *** covered by such Leases under which the Lessees have defaulted in their payment obligations to Manager and/or to Owner, or (ii) Containers constitute at least *** covered by such defaulted Lease(s), and Owner agrees to indemnify Manager with respect to such enforcement action (including with respect to claims, losses and liabilities asserted by the owners of any of the other containers in Manager’s Fleet covered by such defaulted Lease(s) including Manager itself) and to *** associated therewith including the reasonable cost of the time of Manager’s employees spent on such enforcement proceedings. *** incurred by Manager with respect to enforcement proceedings under subclause (i) shall be allocated proportionally based on the number of Containers included among the containers in Manager’s Fleet covered by such defaulted Leases, and Owner’s pro rata share thereof shall be deemed to be Operating Expenses for purposes of this Agreement. The costs and expenses incurred by Manager with respect to enforcement proceedings under subclause (ii) shall be wholly for Owner’s account and shall be deemed to be Operating Expenses for purposes of this Agreement upon Owner’s authorization to undertake such proceedings. With respect to enforcement proceedings undertaken by Manager pursuant to this subsection, Manager agrees to consult with Owner in each case in which the claims relating to Containers under such defaulted Lease can reasonably be expected to exceed *** and/or the costs relating to Containers under such defaulted Lease can reasonably be expected to exceed *** Manager further agrees to be guided in the conduct of such proceedings by the opinion of the majority in interest of all owners of containers (including the Containers) affected by such defaulted Lease, including for this purpose, Manager’s vote as owner with respect to the containers it owns for its own account.thereto;
(d) Take such steps set up and keep in good order separate, accurate and adequate accounting records to be maintained for OWNER, and maintain orderly files containing income records, insurance policies, leases and subleases, correspondence, receipted bills and vouchers, and all other documents pertaining to the Plant or the operation thereof, and prepare or cause to be prepared for OWNER monthly and annual statements of account as may be required to ensure that all obligations and duties arising under the Leases, whether of Lessees or Manager, are performed or complied with in an orderly and timely fashion; and terminate Leases under which the Lessees are in material default and recover possession of the Containers end of each month and enforce year, all rights of Manager and/or Owner in accordance with respect thereto, including the payment of all amounts owing under Leases or otherwise with respect to such Containers, institute and prosecute legal proceedings in the name of Owner and/or Manager as permitted by applicable laws in order to terminate such Leases and/or recover possession of the Containers and settle, compromise and/or release such proceedings or reinstate such Leases. Provided, however, that Manager may not settle any counter-claims filed against Owner without first receiving Owner’s written consent. Except as otherwise specifically provided in subsection (c) above, in determining what action to take, and ‘in performing its duties under this subsection, Manager shall be entitled to follow its standard credit and collection policies and procedures which Manager normally uses with respect to other containers in Manager’s Fleet. All costs and expenses incurred by Manager in performing the foregoing shall be allocated based on the number of Containers included among the containers covered by such defaulted Leases, and Owner’s share of such costs and expenses with respect to the Containers shall be deemed to be Operating Expenses for purposes of this Agreement.paragraph 28;
(e) Cause check all Containers bills received for services, work and supplies ordered in connection with maintaining and operating the Plant and pay, with OWNER's funds, or cause to be maintained paid all such expenses, mortgage interest and repaired in amortization, ground rent, water charges, sewer rent, assessments, real estate taxes, and other taxes assessed against the ordinary course of Manager’s business in good Plant as and safe operating condition when the same shall become due and cause said Containers to be periodically inspected.payable;
(f) Place establish and use its best efforts maintain the Accounts; collect payments from customers of the Plant and take any and all actions MANAGER deems necessary or desirable to maintain in effect on an “occurrence basis,” if available on commercially reasonable terms, throughout the term of this Agreement in Manager’s name a blanket insurance policy(s) covering the Containers, or an insurance policy covering all the containers in Manager’s Fleet including the Containers, under which Owner (and Owner’s lender(s) if applicable) will be named as additional insureds and loss payeescollect such payments; deposit such payments into, and including coverage which is at least as broad withdraw or disburse such amounts from, the Accounts; all in scope and as great in amount as the coverage provided by Manager for other containers of the same Type(s) in Manager’s Fleet and coverage which is generally comparable to industry practices. Attached hereto, made a part hereof and marked, “Exhibit B,” is/are (a) certificate(s) of insurance which describes the coverage which Manager has in effect on Manager’s Fleet at the time of the execution of this Agreement which coverage will be extended to all Containers upon acquisition by Owner. Manager shall provide an executed original of such certificate to Owner and Owner’s Agent upon execution of this Agreement and shall continue to provide to Owner and Owner’s Agent (and to Owner’s lender(s) if applicable) renewal certificate(s) evidencing the coverages required herein prior to the expiration of the certificate(s) in existence at the time of the execution of this Agreement. All such certificates shall provide that the insurer shall give Owner and Owner’s Agent at least 30 days prior written notice of any cancellation or material modification of the coverage. Manager shall have the right to change its existing insurance coverage on the containers in Manager’s Fleet if in Manager’s reasonable and good faith judgment such change is required due to changing costs for insurance or changing industry practices. Manager agrees to notify Owner at least 30 days in advance of any such contemplated changes in insurance coverage. If Owner wishes insurance coverage which is broader in scope and/or greater in amount than that purchased by Manager for the containers in Manager’s Fleet, then Manager will cooperate in arranging such additional coverage and Owner shall pay the incremental cost thereof. Manager will use good faith efforts to insure the Containers at their respective Stipulated Loss Values as those values vary from time to time. If Manager is unable (within the parameters set forth herein) to obtain property loss and damage coverage for the Containers which values the Containers at their respective Stipulated Loss Values as those values vary from time to time, Manager will immediately notify Owners Agent so that Owner may attempt to obtain (at Owner’s sole cost) supplemental coverage for the Containers if Owner so electsaccordance with paragraph 12.
(g) On behalf comply with all covenants of Owner pay all Operating Expenses including charges, assessments, and levies imposed upon or against the Containers other than charges, assessments or levies payable by and chargeable to any Lessee OWNER under any Lease or otherwise, of whatever kind or nature and, in Manager’s reasonable discretion, defend against any such charges, assessments or levies and seek revision or appeal from any charge, assessment or levy deemed improper, all such actions to be in the name of Manager or Owner or both as Manager determines in its reasonable discretion, and brought on behalf of Owner and at the expense of Owner. Provided, however, if Manager brings an action the outcome of which will directly affect containers in Manager’s Fleet owned by entities other than Owner, Owner’s responsibility for costs incurred in such actions shall be shared proportionally with the other owners on the basis of the number of affected Containers to all affected containers in Manager’s Fleet. If Owner chooses to utilize the Containers as collateral for debt financing purposes at any time while such Containers remain covered by this Agreement, Owner shall pay all sums due with respect to such financing (“Debt Capital”) in full in a timely manner, and shall indemnify Manager and any Lessee’s of the Containers from the consequences of any failure by Owner to remain in compliance with the terms of such Debt Capital.any mortgage loan affecting the Plant, subject to OWNER's duties in paragraph 6(a);
(h) Monitor cause to be effected and record status and/or location and movement of maintained on the Containers and make such records available for inspection by Owner or Owner’s Agent during reasonable business hours and after reasonable notice, and allow Owner and Owner’s Agent Plant the insurance referred to make photocopies thereof. Make available to Owner and Owner’s Agent for discussion and questions such of Manager’s employees as reasonably requested by Owner or Owner’s Agent during reasonable business hours.in paragraph 29;
(i) Maintain notify OWNER and applicable insurance carriers of policies under paragraph 29 of any serious bodily injury (including death) to any Person and any substantial property damage, or claims as to either, that MANAGER has knowledge of or should have maintained complete and accurate books and records indicating by serial number the ownership of each Container and of transactions relating to the Containers and retain such books and records in accordance with Manager’s normal records retention policiesknowledge of, and will make such books and records available for inspection deliver to OWNER any legal process received by Owner it which affects or Owner’s Agent during reasonable business hours and after reasonable notice, and allow Owner may affect OWNER or Owner’s Agent to make photocopies thereof.the Plant;
(j) As soon as reasonably practicablecontract for and cause the purchase of all services, place decalsgrains, plates and/or such supplies and other marksmaterials necessary for the Plant to produce the Products and contract for and cause the marketing and sale of the Products; provided, legendshowever, or decals on MANAGER shall not contract with an affiliate of MANAGER for any of the Containers to indicate that such Containers are owned by Owner and that they may be subject to a security interest items stated in favor this paragraph 3(j), without the prior approval of one or more financial institutions. Manager may also label the Containers with all of its customary labels, marks and decals and/or to indicate that they are managed by Manager. The cost of placing all such marks, legends or decals on the Containers shall be included in the Per Container Price and Total Invoice Price paid by Owner.OWNER;
(k) Advise Owner with respect contract for electricity, natural gas, water, waste water, fuel oil, rubbish and snow removal, vermin extermination and such other services or such of them as MANAGER deems necessary or advisable, provided, however, MANAGER shall not contract for electricity, natural gas, water and waste water without the prior approval of OWNER;
(l) contract for and cause the Plant and all fixtures, furnishings, equipment, supplies, tools, and other materials and facilities thereof to be maintained in good order and condition; to cause all routine repairs, replacements and alterations to be made thereto; and to purchase such items MANAGER deems necessary or desirable for the sale operation and maintenance of any Containers and, upon request of Owner, cooperate with Owner to use good faith efforts in securing a purchaser for such Containersthe Plant; provided, however, that except as expressly provided in Section 4(c), 4(d), 7, and Section 13 hereof, Manager MANAGER shall not have contract for any authority to offer particular item involving an expenditure in excess of $15,000, other than budgeted items, without the prior approval of OWNER except in circumstances which MANAGER reasonably believes constitutes an emergency requiring immediate action for sale, contract the preservation or agree to sell, or sell any safety of the Containers.
(l) Upon removal Plant or its occupants or to avoid the suspension of any Container from coverage under this Agreement pursuant to Section 13(a)(ii), unless such Container is sold or disposed of by Manager on behalf of Owner in accordance with Section 13(a)(ii), arrange as promptly as possible for the transportation of such Container, at Owner’s expense, in an “as is” condition to such destination as requested by the Owner.necessary service;
(m) Subject use its best efforts to Section 13, cause Capital Improvements the Plant and its operations to be made to the Containers. comply with all applicable laws and regulations;
(n) Concurrently act in compliance with OWNER's Operating Agreement and other governing documents provided that (i) MANAGER has actual knowledge of OWNER's Operating Agreement and other governing documents, and any amendments thereto, and (ii) the monthly payment of Owner’s Net Distribution required under Section 9 terms of this Agreement, remit into Owner’s Account the amount of Net Proceeds from Sale Agreement shall not altered or Disposition of Containers accrued during such time period, and notify Owner’s Agent amended by any of the date terms of OWNER's Operating Agreement and amount other governing documents and any amendments thereto;
(o) reasonably cooperate with OWNER and its attorneys and accountants in making any disclosures required by the Securities Act of 1933 and the Securities Exchange Act of 1934 or any other securities laws;
(p) recommend and, subject to the approval of OWNER, cause all such paymentacts and things to be done in or about the Plant as shall be necessary to comply with any and all orders or 4 violations affecting the Plant placed thereon by any federal, state or municipal authority having jurisdiction thereover, subject to OWNER's duties in paragraph 6(a);
(q) cooperate with OWNER's accountants in regard to the preparation and filing on behalf of OWNER of any income or other tax return; and
(r) provide benchmarking services to OWNER as described on EXHIBIT A attached hereto.
Appears in 1 contract
Duties of Manager. In consideration Beginning on the Effective Date, Manager's obligations hereunder shall include, but not be limited to, the following obligations, all of the compensation to be paid to Manager by Owner pursuant to this Agreement, and which are subject to the agreement of Owner to make payments to Manager pursuant to this Agreement, Manager shall provide terms hereof (including without limitation the terms contained in Section 2.1(c) above) and perform, or cause its affiliate(s) to provide the controls and perform (provided that restrictions in such case, Manager shall remain primarily responsible), on behalf of Owner the services set forth in this Section 5, which services shall be provided and performed during the term of this Agreement at a level or standard of care no less than the level or standard of care customarily applied by container lessors generally.Operations Manual:
(a) Manage all aspects of the Facility in accordance with the Operations Manual and the terms of this Agreement, including but not limited to managing events, purchasing, payroll, fire prevention, security, crowd control, routine repairs, preventative maintenance, janitorial services, promotions, advertising, energy conservation, security, box office, admission procedures, parking, and general user services. The parties acknowledge that the University may itself provide certain services at the Facility. In such event, the event costs of a breach such services shall be at standard and customary rates, within the guidelines of the Operating Budget (as defined in Section 9.1).
(b) Establish and adjust prices, rates and rate schedules for user, license, concessions, occupancy, and advertising agreements, and booking commitments.
(c) As agent for the University, procure, negotiate, execute in the University’s name, administer and assure compliance with service contracts (including without limitation contracts for ticketing, engineering services, electricity, steam, gas, fuel, maintenance, telephone, staffing personnel including guards and ushers, extermination and other services which are deemed by Manager to be either necessary or useful in operating the Facility), vendor and merchandising agreements, user/rental agreements, booking commitments, licenses, and all other contracts or agreements required in the ordinary course of business in operating the Facility. Prior to procuring any manufacturer’ssuch services, subcontractor’s, dealer’s or other entity’s warranty as Manager shall coordinate with the University to determine if the condition, merchantability, fitness for a particular purpose, or otherwise with respect to University already has an established vendor(s) that can provide any or all of the Containers, provided that Owner has specifically authorized in advance in writing the expenditure of all fees and expenses related thereto (including but not limited to legal expenses), Manager agrees to pursue all reasonable actions on Owner’s behalf against said warrantors above-referenced services at Owner’s expensea favorable cost. Manager makes no independent representations or warranties shall use reasonable efforts to Owner with respect negotiate and have included in such contracts favorable terms regarding the timing of payments to the condition, merchantability, fitness for any particular purpose with respect to any such Containers and University. Manager shall have no liability to Owner for any breach obtain the prior approval of any manufacturer’s, subcontractor’s, dealer’s or other entity’s warranty with respect thereto.
the University (b) Use good faith efforts throughout the term of this Agreement to lease the Containers to oceangoing shipping lines or other Lessees as reasonably determined by Manager in accordance with its standard credit and collection policies and procedures which Manager normally uses with respect to other containers in Manager’s Fleet, and to manage Owner’s Fleet on a non-discriminatory basis in relation to the other containers in Manager’s Fleet, with respect to lease-outs, cash receipts, operating expenses, and other management services. In that regard, on a non-discriminatory basis relative to other containers in Manager’s Fleet, Manager will use its best efforts to avoid leasing all of Owner’s Fleet to one shipping line.
(c) Use good faith efforts to collect from Lessees, in accordance with the terms of any Lease, all rental payments and all other amounts due with respect to the Containers under any Leases and account for and remit those sums due to Owner as hereinafter provided. Notwithstanding the foregoing, Manager approval shall not be required to institute legal action to collect unreasonably withheld or delayed) before entering into any sums due to Owner as aforesaid unless: such contract (i) Manager determines to take such action to enforce such Leases with respect to *** covered by such Leases under which Manager's parent, affiliates, or related entities, (ii) with a term longer than the Lessees have defaulted in their payment obligations to Manager and/or to OwnerTerm, or (iiiii) Containers constitute at least *** covered by such defaulted Lease(s), and Owner agrees to indemnify Manager with respect to such enforcement action (including with respect to claims, losses and liabilities asserted by the owners of any which includes a barter or trade arrangement as a material term of the other containers in Manager’s Fleet covered by such defaulted Lease(s) including Manager itself) and to *** associated therewith including the reasonable cost of the time of Manager’s employees spent on such enforcement proceedings. *** incurred by Manager with respect to enforcement proceedings under subclause (i) shall be allocated proportionally based on the number of Containers included among the containers in Manager’s Fleet covered by such defaulted Leases, and Owner’s pro rata share thereof shall be deemed to be Operating Expenses for purposes of this Agreement. The costs and expenses incurred by Manager with respect to enforcement proceedings under subclause (ii) shall be wholly for Owner’s account and shall be deemed to be Operating Expenses for purposes of this Agreement upon Owner’s authorization to undertake such proceedings. With respect to enforcement proceedings undertaken by Manager pursuant to this subsection, Manager agrees to consult with Owner in each case in which the claims relating to Containers under such defaulted Lease can reasonably be expected to exceed *** and/or the costs relating to Containers under such defaulted Lease can reasonably be expected to exceed *** Manager further agrees to be guided in the conduct of such proceedings by the opinion of the majority in interest of all owners of containers (including the Containers) affected by such defaulted Lease, including for this purpose, Manager’s vote as owner with respect to the containers it owns for its own accountcontract.
(d) Take such steps as may be required to ensure Require that all obligations material vendors and duties arising under the Leases, whether of Lessees or Manager, are performed or complied with in an orderly and timely fashion; and terminate Leases under which the Lessees are in material default and recover possession licensees of the Containers Facility execute vendor/license agreements containing standard indemnification and enforce all rights insurance obligations on the part of Manager and/or Owner each such vendor/licensee, and provide the University with respect thereto, including the payment a copy of all amounts owing under Leases or otherwise with respect to such Containers, institute and prosecute legal proceedings in the name of Owner and/or Manager as permitted by applicable laws in order to terminate such Leases and/or recover possession of the Containers and settle, compromise and/or release such proceedings or reinstate such Leases. Provided, however, that Manager may not settle any counter-claims filed against Owner without first receiving Owner’s written consent. Except as otherwise specifically provided in subsection (c) above, in determining what action to take, and ‘in performing its duties under this subsection, Manager shall be entitled to follow its standard credit and collection policies and procedures which Manager normally uses with respect to other containers in Manager’s Fleet. All costs and expenses incurred by Manager in performing the foregoing shall be allocated based on the number of Containers included among the containers covered by such defaulted Leases, and Owner’s share of such costs and expenses with respect to the Containers shall be deemed to be Operating Expenses for purposes of this Agreement.
(e) Cause all Containers to be maintained and repaired in the ordinary course of Manager’s business in good and safe operating condition and cause said Containers to be periodically inspected.
(f) Place and use its best efforts to maintain in effect on an “occurrence basis,” if available on commercially reasonable terms, throughout the term of this Agreement in Manager’s name a blanket insurance policy(s) covering the Containers, or an insurance policy covering all the containers in Manager’s Fleet including the Containers, under which Owner (and Owner’s lender(s) if applicable) will be named as additional insureds and loss payees, and including coverage which is at least as broad in scope and as great in amount as the coverage provided by Manager for other containers of the same Type(s) in Manager’s Fleet and coverage which is generally comparable to industry practices. Attached hereto, made a part hereof and marked, “Exhibit B,” is/are (a) certificate(s) of insurance which describes the coverage which Manager has in effect on Manager’s Fleet at the time of the execution of this Agreement which coverage will be extended to all Containers upon acquisition by Owner. Manager shall provide an executed original of such certificate to Owner and Owner’s Agent upon execution of this Agreement and shall continue to provide to Owner and Owner’s Agent (and to Owner’s lender(s) if applicable) renewal certificate(s) evidencing the coverages required herein prior to the expiration of the certificate(s) in existence at the time of the execution of this Agreement. All such certificates shall provide that the insurer shall give Owner and Owner’s Agent at least 30 days prior written notice of any cancellation or material modification of the coverage. Manager shall have the right to change its existing insurance coverage on the containers in Manager’s Fleet if in Manager’s reasonable and good faith judgment such change is required due to changing costs for insurance or changing industry practices. Manager agrees to notify Owner at least 30 days in advance of any such contemplated changes in insurance coverage. If Owner wishes insurance coverage which is broader in scope and/or greater in amount than that purchased by Manager for the containers in Manager’s Fleet, then Manager will cooperate in arranging such additional coverage and Owner shall pay the incremental cost thereof. Manager will use good faith efforts to insure the Containers at their respective Stipulated Loss Values as those values vary from time to time. If Manager is unable (agreements within the parameters set forth herein) to obtain property loss and damage coverage for the Containers which values the Containers at their respective Stipulated Loss Values as those values vary from time to time, Manager will immediately notify Owners Agent so that Owner may attempt to obtain (at Owner’s sole cost) supplemental coverage for the Containers if Owner so elects.
(g) On behalf of Owner pay all Operating Expenses including charges, assessments, and levies imposed upon or against the Containers other than charges, assessments or levies payable by and chargeable to any Lessee under any Lease or otherwise, of whatever kind or nature and, in Manager’s reasonable discretion, defend against any such charges, assessments or levies and seek revision or appeal from any charge, assessment or levy deemed improper, all such actions to be in the name of Manager or Owner or both as Manager determines in its reasonable discretion, and brought on behalf of Owner and at the expense of Owner. Provided, however, if Manager brings an action the outcome of which will directly affect containers in Manager’s Fleet owned by entities other than Owner, Owner’s responsibility for costs incurred in such actions shall be shared proportionally with the other owners on the basis of the number of affected Containers to all affected containers in Manager’s Fleet. If Owner chooses to utilize the Containers as collateral for debt financing purposes at any time while such Containers remain covered by this Agreement, Owner shall pay all sums due with respect to such financing (“Debt Capital”) in full in a timely manner, and shall indemnify Manager and any Lessee’s of the Containers from the consequences of any failure by Owner to remain in compliance with the terms of such Debt Capital.
(h) Monitor and record status and/or location and movement of the Containers and make such records available for inspection by Owner or Owner’s Agent during reasonable business hours and after reasonable notice, and allow Owner and Owner’s Agent to make photocopies thereof. Make available to Owner and Owner’s Agent for discussion and questions such of Manager’s employees as reasonably requested by Owner or Owner’s Agent during reasonable business hours.
(i) Maintain or have maintained complete and accurate books and records indicating by serial number the ownership of each Container and of transactions relating to the Containers and retain such books and records in accordance with Manager’s normal records retention policies, and will make such books and records available for inspection by Owner or Owner’s Agent during reasonable business hours and after reasonable notice, and allow Owner or Owner’s Agent to make photocopies thereof.
(j) As soon as reasonably practicable, place decals, plates and/or such other marks, legends, or decals on the Containers to indicate that such Containers are owned by Owner and that they may be subject to a security interest in favor of one or more financial institutions. Manager may also label the Containers with all of its customary labels, marks and decals and/or to indicate that they are managed by Manager. The cost of placing all such marks, legends or decals on the Containers shall be included in the Per Container Price and Total Invoice Price paid by Owner.
(k) Advise Owner with respect to the sale of any Containers and, upon request of Owner, cooperate with Owner to use good faith efforts in securing a purchaser for such Containers; provided, however, that except as expressly provided in Section 4(c), 4(d), 7, and Section 13 hereof, Manager shall not have any authority to offer for sale, contract or agree to sell, or sell any of the Containers.
(l) Upon removal of any Container from coverage under this Agreement pursuant to Section 13(a)(ii), unless such Container is sold or disposed of by Manager on behalf of Owner in accordance with Section 13(a)(ii), arrange as promptly as possible for the transportation of such Container, at Owner’s expense, in an “as is” condition to such destination as requested by the Owner.
(m) Subject to Section 13, cause Capital Improvements to be made to the Containers. (n) Concurrently with the monthly payment of Owner’s Net Distribution required under Section 9 of this Agreement, remit into Owner’s Account the amount of Net Proceeds from Sale or Disposition of Containers accrued during such time period, and notify Owner’s Agent of the date and amount of such payment.thirty
Appears in 1 contract
Sources: Management Services Agreement