Powers of Manager. The Manager’s discretion and authority are subject to the limitations imposed by law and by the Manager’s Certificate of Incorporation. Subject to the foregoing and to other limitations imposed by this Agreement, the Manager shall have full, complete and exclusive discretion to manage and control the business and affairs of the Company and make all decisions affecting the business and assets of the Company. Without limiting the generality of the foregoing (but subject to the restrictions specifically contained in this Agreement), the Manager shall have the power and authority to take the following actions on its own behalf in its capacity as Manager or on behalf of the Company: (a) to acquire, purchase, own, manage, operate, lease and dispose of any real property and any other property or assets that the Manager determines are necessary or appropriate or in the best interests of conducting the business of the Company; (b) to construct buildings and make other improvements (including renovations) on or to the properties owned or leased by the Company; (c) to borrow money for the Company, issue evidences of indebtedness in connection therewith, refinance, guarantee, increase the amount of, modify, amend or change the terms of, or extend the time for the payment of, any indebtedness or obligation of or to the Company, and secure such indebtedness by mortgage, deed of trust, pledge or other lien on the Company’s assets; (d) to pay, either directly or by reimbursement, for all Operating Expenses to third parties or to the Manager (as set forth in this Agreement); (e) to lease all or any portion of any of the Company’s assets, whether or not the terms of such leases extend beyond the termination date of the Company and whether or not any portion of the Company’s assets so leased are to be occupied by the lessee, or, in turn, subleased in whole or in part to others, for such consideration and on such terms as the Manager may determine; (f) to prosecute, defend, arbitrate, or compromise any and all claims or liabilities in favor of or against the Company, on such terms and in such manner as the Manager may reasonably determine, and similarly to prosecute, settle or defend litigation with respect to the Members, the Company, or the Company’s assets; (g) to file applications, communicate, and otherwise deal with any and all governmental agencies having jurisdiction over, or in any way affecting, the Company’s assets or any other aspect of the Company business; (h) to make or revoke any election permitted or required of the Company by any taxing authority; (i) to maintain such insurance coverage for public liability, fire and casualty, and any and all other insurance for the protection of the Company, for the conservation of Company assets, or for any other purpose convenient or beneficial to the Company, in such amounts and such types as the Manager shall determine from time to time; (j) to determine whether or not to apply any insurance proceeds for any Property to the restoration of such Property or to distribute the same; (k) to retain providers of services of any kind or nature in connection with the Company business and to pay therefor such reasonable remuneration as the Manager may deem proper; (l) to negotiate and conclude agreements on behalf of the Company with respect to any of the rights, powers and authority conferred upon the Manager, including, without limitation, management agreements as to the Company, management agreements of other Persons by the Company as manager, franchise agreements, and agreements with operators of Company property; (m) to maintain accurate accounting records and to file promptly all federal, state and local income tax returns on behalf of the Company; (n) to form or acquire an interest in, and contribute property to, any further limited or general partnerships, joint ventures or other relationships that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, the Company’s Subsidiaries and any other Person in which it has an equity interest from time to time); (o) to distribute Company cash or other Company assets in accordance with this Agreement; (p) to establish Company reserves for working capital, capital expenditures, contingent liabilities or any other valid Company purpose; (q) to authorize, issue, sell, redeem or otherwise purchase any Membership Interests or any securities (including secured and unsecured debt obligations of the Company, debt obligations of the Company convertible into any class or series of Membership Interests, or options, rights, warrants or appreciation rights relating to any Membership Interests) of the Company; (r) subject to the provisions of Section 9.1, to merge, consolidate or combine the Company with or into another Person (to the extent permitted by applicable law); (s) to do any and all acts and things necessary or prudent to ensure that the Company will not be classified as a “publicly traded partnership” for purposes of Section 7704 of the Code; (t) to issue additional Membership Interests pursuant to Section 4.3; (u) to pay cash to redeem Units held by a Member in connection with a Member’s exercise of its Redemption Right under Section 7.3 or in connection with a redemption of any Preferred Unit; (v) to amend and restate Exhibit A to reflect accurately at all times the Capital Contributions, Common Percentage Interests and Preferred Percentage Interests of the Members as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Units, the admission of any Additional Member or any Substitute Member or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A otherwise is authorized by this Agreement; (w) to take whatever action the Manager deems appropriate to maintain the economic equivalency of a Common Unit and a share of Ashford Inc. Common Stock (subject to the effect of the Conversion Factor) and a Preferred Unit of a series and a share of Ashford Inc. Preferred Stock of the corresponding series, respectively; and (x) to take such other action, execute, acknowledge, swear to or deliver such other documents and instruments, and perform any and all other acts the Manager deems necessary or appropriate for the formation, continuation and conduct of the business and affairs of the Company and to possess and enjoy all of the rights and powers of a manager as provided by the Act. Each of the Members agrees that the Manager is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Company without any further act, approval or vote of the Members (except as provided in the last sentence of Section 6.10, Section 7.7 or Article XI), notwithstanding any other provisions of the Act or any applicable law, rule or regulation to the fullest extent permitted under the Act or other applicable law, rule or regulation. The execution, delivery or performance by the Manager or the Company of any agreement authorized or permitted under this Agreement shall not constitute a breach by the Manager of any duty that the Manager may owe the Company or the Members or any other persons under this Agreement or of any duty stated or implied by law or equity. Except as otherwise provided in this Agreement, to the extent the duties of the Manager require expenditures of funds to be paid to third parties, the Manager shall not have any obligations under this Agreement except to the extent that Company funds are reasonably available to it for the performance of such duties, and nothing in this Agreement contained shall be deemed to authorize or require the Manager, in its capacity as such, to expend its individual funds for payment to third parties or to undertake any individual liability or obligation on behalf of the Company.
Appears in 1 contract
Powers of Manager. The Manager’s discretion Every person or entity dealing with Manager acting in good faith will be protected in relying solely upon the deed, conveyance or assurance of Manager and authority are subject will not be required to ascertain whether the limitations imposed by law and by the Manager’s Certificate of IncorporationFoundation has approved any such act. Subject to the foregoing and to other limitations imposed by this Agreement, the Manager shall have full, complete and exclusive discretion to manage and control the business and affairs of the Company and make all decisions affecting the business and assets of the Company. Without limiting the generality of the foregoing (but subject to the restrictions specifically contained in this Agreement), the Manager shall will have the power and authority to take the following actions on its own behalf in its capacity as Manager or on behalf of the Company:
(a) to acquire, purchase, own, manage, operate, lease and dispose of any real property and any other property or assets that the Manager determines are necessary or appropriate or in the best interests of conducting the business of the Company;
(b) to construct buildings and make other improvements (including renovations) on or to the properties owned or leased by the Company;
(c) to borrow money for the Company, issue evidences of indebtedness in connection therewith, refinance, guarantee, increase the amount of, modify, amend or change the terms of, or extend the time for the payment of, any indebtedness or obligation of or to the Company, and secure such indebtedness by mortgage, deed of trust, pledge or other lien on the Company’s assets;
(d) to pay, either directly or by reimbursement, for all Operating Expenses to third parties or to the Manager (as set forth in this Agreement);
(e) to lease all or any portion of any of the Company’s assets, whether or not the terms of such leases extend beyond the termination date of the Company and whether or not any portion of the Company’s assets so leased are to be occupied by the lessee, or, in turn, subleased in whole or in part to others, for such consideration and on such terms as the Manager may determine;
(f) to prosecute, defend, arbitrate, or compromise any and all claims or liabilities in favor of or against the Company, on such terms and in such manner as the Manager may reasonably determine, and similarly to prosecute, settle or defend litigation powers with respect to the MembersAccount, the Company, or the Company’s assets;
(g) to file applications, communicate, and otherwise deal with any and all governmental agencies having jurisdiction over, or in any way affecting, the Company’s assets or any other aspect of the Company business;
(h) to make or revoke any election permitted or required of the Company by any taxing authority;
(i) to maintain such insurance coverage for public liability, fire and casualty, and any and all other insurance for the protection of the Company, for the conservation of Company assets, or for any other purpose convenient or beneficial to the Company, in such amounts and such types as the Manager shall determine from time to time;
(j) to determine whether or not to apply any insurance proceeds for any Property to the restoration of such Property or to distribute the same;
(k) to retain providers of services of any kind or nature in connection with the Company business and to pay therefor such reasonable remuneration as the Manager may deem proper;
(l) to negotiate and conclude agreements on behalf of the Company with respect to any of the rights, powers and authority conferred upon the Manager, including, without limitation, management agreements as to the Company, management agreements of other Persons by the Company as manager, franchise agreements, and agreements with operators of Company property;
(m) to maintain accurate accounting records and to file promptly all federal, state and local income tax returns on behalf of the Company;
(n) to form or acquire an interest in, and contribute property to, any further limited or general partnerships, joint ventures or other relationships that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, the Company’s Subsidiaries and any other Person in which it has an equity interest from time to time);
(o) to distribute Company cash or other Company assets in accordance with this Agreement;
(p) to establish Company reserves for working capital, capital expenditures, contingent liabilities or any other valid Company purpose;
(q) to authorize, issue, sell, redeem or otherwise purchase any Membership Interests or any securities (including secured and unsecured debt obligations of the Company, debt obligations of the Company convertible into any class or series of Membership Interests, or options, rights, warrants or appreciation rights relating to any Membership Interests) of the Company;
(r) subject to the provisions of Section 9.1, to merge, consolidate or combine the Company with or into another Person (to the extent permitted by applicable law);5:
(sa) to do To invest and reinvest any and all acts and things necessary moneys received in securities and/or property in which it is now or prudent to ensure that may be hereafter lawful, under the Company will not be classified as a “publicly traded partnership” for purposes of Section 7704 laws of the Code;state of Indiana, to invest its own funds or funds committed to its care and in common funds maintained by Manager; provided, however, that Manager will be under no duty to sell or dispose of any investment made by it solely because such investment ceases to be of a class permitted by such laws.
(tb) to issue additional Membership Interests pursuant to Section 4.3;
(u) to pay cash to redeem Units held by a Member To retain any and all property, which may come into its hands in connection with a Member’s exercise of its Redemption Right under Section 7.3 or the form and condition in connection with a redemption of any Preferred Unit;
(v) to amend and restate Exhibit A to reflect accurately at all times the Capital Contributionswhich it may be, Common Percentage Interests and Preferred Percentage Interests of the Members as the same are adjusted or, if it will deem it advisable, from time to time sell or exchange any or all such property.
(c) To sell, lease (for such periods, irrespective of the time for distribution of principal, as it will deem for the best interests of the Account), convey, transfer, exchange, deliver and dispose of all or any party of the property or securities from time to time constituting the Account, at such prices and upon such terms and conditions as to it will seem expedient and proper; no purchaser of any securities or property sold by Manager will be bound to ascertain or inquire into the necessity or propriety of such sale, or will be bound to see to the extent necessary to reflect redemptionsapplication of the purchase moneys paid thereon, Capital Contributions, and the issuance receipts or receipt in writing of Units, Manager for the admission purchase money of any Additional Member property sold, or for any money, stocks, funds, shares or securities which may be paid or transferred to them, will effectually discharge the purchaser or purchasers or other person or persons paying or transferring the same therefrom or for being answerable for the application or misapplication thereof.
(d) To make, execute and deliver any receipts, bills of sale, conveyances, assignments, transfers, proxies, powers of attorney and agreements as it deems best in the management and control of the assets constituting the Account. All conveyances executed and delivered by Manager or its nominee will be without covenants of warranty except as against its own acts of its nominee.
(e) To exercise all voting rights and privileges pertaining to stocks held by it as may be permitted by law for it to have and to exercise; to make or join in any plan or plans of reorganization or of readjustment in respect of any corporation of which any of the shares of stocks, bonds or other securities or obligations are at any time held by it, and to exchange, accept and hold any property or new securities in exchange for or in place of any securities surrendered in accordance with any such plan; to assent to the liquidation, consolidation or merger of any corporation whose securities are held by it with any other corporation or to the lease by such corporation of its property, or any Substitute Member portion thereof, to any other corporation, or otherwiseto the sale or lease by any other corporation of its property to such corporation, which amendment and restatementupon any such consolidation, notwithstanding anything merger, lease or similar arrangement, to exchange the securities held by Manager for other securities issued in substitution therefor; to pay all such assessments, expenses and sums of money as it may deem expedient for the protection of the interest of the Account as holder of the socks, bonds, or other securities of any corporation. The term corporation as used in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A otherwise is authorized by this Agreement;
(w) to take whatever action the Manager deems appropriate to maintain the economic equivalency of a Common Unit and a share of Ashford Inc. Common Stock (subject to the effect of the Conversion Factor) and a Preferred Unit of a series and a share of Ashford Inc. Preferred Stock of the corresponding series, respectively; and
(x) to take such other action, execute, acknowledge, swear to or deliver such other documents and instruments, and perform any and all other acts the Manager deems necessary or appropriate for the formation, continuation and conduct of the business and affairs of the Company and to possess and enjoy all of the rights and powers of a manager as provided by the Act. Each of the Members agrees that the Manager is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Company without any further act, approval or vote of the Members (except as provided in the last sentence of Section 6.10, Section 7.7 or Article XI), notwithstanding any other provisions of the Act or any applicable law, rule or regulation to the fullest extent permitted under the Act or other applicable law, rule or regulation. The execution, delivery or performance by the Manager or the Company of any agreement authorized or permitted under this Agreement shall not constitute a breach by the Manager of any duty that the Manager may owe the Company or the Members or any other persons under this Agreement or of any duty stated or implied by law or equity. Except as otherwise provided in this Agreement, to the extent the duties of the Manager require expenditures of funds to be paid to third parties, the Manager shall not have any obligations under this Agreement except to the extent that Company funds are reasonably available to it for the performance of such duties, and nothing in this Agreement contained shall will be deemed to authorize include any company, association, trust or require other entity or organization whose shares, certificates of ownership, bonds, obligations or securities of any character are held by Manager.
(f) To take and hold all assets of the Manager, Account in its capacity name, or in the name of a nominee, without disclosing the agency except as such, to expend its individual funds for payment to third parties requested by the Foundation or to undertake any individual liability or obligation on behalf of the CompanyConsultant.
Appears in 1 contract
Sources: Investment Manager Agreement
Powers of Manager. The Manager’s discretion and authority are subject to the limitations imposed by law and by the Manager’s Certificate of Incorporation. Subject to the foregoing and to other limitations imposed by this Agreement, the Manager shall have full, complete and exclusive discretion to manage and control the business and affairs of the Company and make all decisions affecting the business and assets of the Company. Without limiting the generality of the foregoing (but subject to the restrictions specifically contained in this Agreement), the Manager shall have the power and authority to take the following actions on its own behalf in its capacity as Manager or on behalf of the Company:
(a) to acquire, purchase, own, manage, operate, lease and dispose of any real property and any other property or assets that the Manager determines are necessary or appropriate or in the best interests of conducting the business of the Company;
(b) to construct buildings and make other improvements (including renovations) on or to the properties owned or leased by the Company;
(c) to borrow money for the Company, issue evidences of indebtedness in connection therewith, refinance, guarantee, increase the amount of, modify, amend or change the terms of, or extend the time for the payment of, any indebtedness or obligation of or to the Company, and secure such indebtedness by mortgage, deed of trust, pledge or other lien on the Company’s assets;
(d) to pay, either directly or by reimbursement, for all Operating Expenses to third parties or to the Manager (as set forth in this Agreement);
(e) to lease all or any portion of any of the Company’s assets, whether or not the terms of such leases extend beyond the termination date of the Company and whether or not any portion of the Company’s assets so leased are to be occupied by the lessee, or, in turn, subleased in whole or in part to others, for such consideration and on such terms as the Manager may determine;
(f) to prosecute, defend, arbitrate, or compromise any and all claims or liabilities in favor of or against the Company, on such terms and in such manner as the Manager may reasonably determine, and similarly to prosecute, settle or defend litigation with respect to the Members, the Company, or the Company’s assets;
(g) to file applications, communicate, and otherwise deal with any and all governmental agencies having jurisdiction over, or in any way affecting, the Company’s assets or any other aspect of the Company business;
(h) to make or revoke any election permitted or required of the Company by any taxing authority;
(i) to maintain such insurance coverage for public liability, fire and casualty, and any and all other insurance for the protection of the Company, for the conservation of Company assets, or for any other purpose convenient or beneficial to the Company, in such amounts and such types as the Manager shall determine from time to time;
(j) to determine whether or not to apply any insurance proceeds for any Property to the restoration of such Property or to distribute the same;
(k) to retain providers of services of any kind or nature in connection with the Company business and to pay therefor such reasonable remuneration as the Manager may deem proper;
(l) to negotiate and conclude agreements on behalf of the Company with respect to any of the rights, powers and authority conferred upon the Manager, including, without limitation, management agreements as to the Company, management agreements of other Persons by the Company as manager, franchise agreements, and agreements with operators of Company property;
(m) to maintain accurate accounting records and to file promptly all federal, state and local income tax returns on behalf of the Company;
(n) to form or acquire an interest in, and contribute property to, any further limited or general partnerships, joint ventures or other relationships that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, the Company’s Subsidiaries and any other Person in which it has an equity interest from time to time);
(o) to distribute Company cash or other Company assets in accordance with this Agreement;
(p) to establish Company reserves for working capital, capital expenditures, contingent liabilities or any other valid Company purpose;
(q) to authorize, issue, sell, redeem or otherwise purchase any Membership Interests or any securities (including secured and unsecured debt obligations of the Company, debt obligations of the Company convertible into any class or series of Membership Interests, or options, rights, warrants or appreciation rights relating to any Membership Interests) of the Company;
(r) subject to the provisions of Section 9.1, to merge, consolidate or combine the Company with or into another Person (to the extent permitted by applicable law);
(s) to do any and all acts and things necessary or prudent to ensure that the Company will not be classified as a “publicly traded partnership” for purposes of Section 7704 of the Code;
(t) to issue additional Membership Interests pursuant to Section 4.3;
(u) to pay cash to redeem Units held by a Member in connection with a Member’s exercise of its Redemption Right under Section 7.3 or in connection with a redemption of any Preferred Unit;
(v) to amend and restate Exhibit A to reflect accurately at all times the Capital Contributions, Common Percentage Interests and Preferred Percentage Interests of the Members as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Units, the admission of any Additional Member or any Substitute Member or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A otherwise is authorized by this Agreement;
(w) to take whatever action the Manager deems appropriate to maintain the economic equivalency of a Common Unit and a share of Ashford Inc. Common Stock (subject in each case to the effect of the Conversion FactorFactor and to the effect of income taxation of Ashford Inc.’s taxable income) and a Preferred Unit of a series and a share of Ashford Inc. Preferred Stock of the corresponding series, respectivelyrespectively (subject in each case to the effect of the Conversion Factor and to the effect of income taxation of Ashford Inc.’s taxable income); and
(x) to take such other action, execute, acknowledge, swear to or deliver such other documents and instruments, and perform any and all other acts the Manager deems necessary or appropriate for the formation, continuation and conduct of the business and affairs of the Company and to possess and enjoy all of the rights and powers of a manager as provided by the Act. Each of the Members agrees that the Manager is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Company without any further act, approval or vote of the Members (except as provided in the last sentence of Section 6.10, Section 7.7 or Article XI), notwithstanding any other provisions of the Act or any applicable law, rule or regulation to the fullest extent permitted under the Act or other applicable law, rule or regulation. The execution, delivery or performance by the Manager or the Company of any agreement authorized or permitted under this Agreement shall not constitute a breach by the Manager of any duty that the Manager may owe the Company or the Members or any other persons under this Agreement or of any duty stated or implied by law or equity. Except as otherwise provided in this Agreement, to the extent the duties of the Manager require expenditures of funds to be paid to third parties, the Manager shall not have any obligations under this Agreement except to the extent that Company funds are reasonably available to it for the performance of such duties, and nothing in this Agreement contained shall be deemed to authorize or require the Manager, in its capacity as such, to expend its individual funds for payment to third parties or to undertake any individual liability or obligation on behalf of the Company.
Appears in 1 contract