Powers of Manager. Among the other powers stated herein, in connection with the administration of the Fund, subject to the terms of this Agreement and in addition to all other powers and authority conferred by this Agreement or by law, the Manager may exercise the following powers, authority, and discretion: (i) to enter into any agreement necessary, suitable, or convenient to carry out the purposes of the Fund and any other agreement incidental thereto or connected therewith; (ii) to establish, maintain, and administer one or more accounts and sub- accounts or Subsidiaries of the Fund with one or more accounts or sub-accounts, if desirable; (iii) to make Distributions of the Fund Property on behalf of Eligible Recipients, or to Eligible Recipients, pursuant to the terms and conditions of this Agreement; (iv) to protect and enforce the rights vested in the Fund and the Manager by this Agreement by any method deemed appropriate, including without limitation by judicial proceedings; (v) to take any steps necessary to establish the Fund’s clear title to any Fund Property; (vi) to employ legal counsel, accountants, advisors, custodians, and other agents in connection with the administration or termination of this Fund; to delegate to such legal counsel, accountants, advisors, custodians, and other agents any powers of the Manager except for determining to whom and how Distributions are made; and to pay out of the Fund Property to such legal counsel, accountants, advisors, custodians, and other agents reasonable compensation for services rendered; (vii) to file, if necessary, any and all Tax Returns in connection with the Fund created hereby and to pay any taxes properly payable by the Fund, if any, out of the Fund Property; (viii) to amend any schedule with respect to the timing of any proposed Distribution, as the Manager determines to be necessary, appropriate, or desirable, and to make Distributions in accordance with such amended schedule and this Agreement; (ix) to compromise, adjust, arbitrate, sue on or defend, abandon, or otherwise deal with and settle claims in favor of or against the Fund as the Manager shall determine; (x) to the extent that Fund Property is comprised of money, to invest in, purchase, retain, or sell Permitted Investments; (xi) in general, except as otherwise provided by this Agreement, to exercise any and all rights and powers in the management of the Fund or the Fund Property that any entity could exercise in the management of property owned in its own right, upon such terms and conditions as the Manager may deem best, and to execute and deliver all instruments and to do all acts that the Manager may deem necessary or advisable to carry out the purposes of this Agreement; (xii) subject to compliance with the screening procedures set forth in Section 5.1.8 and Schedule C, to solicit and accept donations to the Fund, which may be accomplished by retaining the services of a professional fundraiser; and (xiii) to provide information to Eligible Recipients as necessary to comply with the Ethics in Government Act, 5 U.S.C. app. § 102(a)(2).
Appears in 1 contract
Samples: Draft Agreement
Powers of Manager. Among the other powers stated herein, in connection with the administration of the Fund, The Manager’s discretion and authority are subject to the terms limitations imposed by law and by the Manager’s Articles of this Agreement Incorporation. Subject to the foregoing and in addition to all other powers and authority conferred limitations imposed by this Agreement or by lawAgreement, the Manager may exercise 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 powersactions on its own behalf in its capacity as Manager or on behalf of the Company:
(a) to acquire, authoritypurchase, 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 discretion: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, to Ashford Inc., to Ashford OAINC II Inc. or to Ashford OAINC Inc. (in its capacity as the Manager or otherwise) (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 enter into maintain such insurance coverage for public liability, fire and casualty, and any agreement necessaryand all other insurance for the protection of the Company, suitablefor the conservation of Company assets, or for any other purpose convenient or beneficial to carry out the purposes 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 Fund 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 agreement incidental thereto or connected therewithPerson in which it has an equity interest from time to time);
(iio) to establish, maintain, and administer one distribute Company cash or more accounts and sub- accounts or Subsidiaries of the Fund other Company assets in accordance with one or more accounts or sub-accounts, if desirable;
(iii) to make Distributions of the Fund Property on behalf of Eligible Recipients, or to Eligible Recipients, pursuant to the terms and conditions of this Agreement;
(ivp) to protect 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 enforce 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 vested 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 the Fund and the Manager by this Agreement by connection with a Member’s exercise of its Redemption Right under Section 7.3 or in connection with any method deemed appropriate, including without limitation by judicial proceedingsother redemption of any Unit;
(v) to take any steps 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 establish reflect redemptions, Capital Contributions, the Fund’s clear title to issuance of Units, the admission of any Fund Property;
(vi) to employ legal counselAdditional Member or any Substitute Member or otherwise, accountantswhich amendment and restatement, advisors, custodians, and other agents notwithstanding anything in connection with the administration or termination of this Fund; to delegate to such legal counsel, accountants, advisors, custodians, and other agents any powers of the Manager except for determining to whom and how Distributions are made; and to pay out of the Fund Property to such legal counsel, accountants, advisors, custodians, and other agents reasonable compensation for services rendered;
(vii) to file, if necessary, any and all Tax Returns in connection with the Fund created hereby and to pay any taxes properly payable by the Fund, if any, out of the Fund Property;
(viii) to amend any schedule with respect Agreement to the timing of any proposed Distributioncontrary, shall not be deemed an amendment to this Agreement, as long as the Manager determines to be necessary, appropriate, matter or desirable, and to make Distributions event being reflected in accordance with such amended schedule and Exhibit A otherwise is authorized by this Agreement;
(ixw) to compromise, adjust, arbitrate, sue on or defend, abandon, or otherwise deal with and settle claims in favor of or against the Fund as take whatever action the Manager shall determine;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 Factor and to the effect of income taxation of Ashford Inc.’s, Ashford OAINC Inc.’s and Ashford OAINC II Inc.’s taxable income) and a Preferred Unit of a series and a share of Ashford Inc. Preferred Stock of the corresponding series, respectively (subject in each case to the effect of the Conversion Factor and to the effect of income taxation of Ashford Inc.’s, Ashford OAINC Inc.’s and Ashford OAINC II 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 Fund Property is comprised the Manager may owe the Company or the Members or any other persons under this Agreement or of money, to invest in, purchase, retain, any duty stated or sell Permitted Investments;
(xi) in general, except implied by law or equity. Except as otherwise provided by in this Agreement, to exercise any and all rights and powers in the management extent the duties of the Fund 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 Fund Property that any entity could exercise in the management of property owned Manager, in its own right, upon such terms and conditions capacity as the Manager may deem best, and to execute and deliver all instruments and to do all acts that the Manager may deem necessary or advisable to carry out the purposes of this Agreement;
(xii) subject to compliance with the screening procedures set forth in Section 5.1.8 and Schedule Csuch, to solicit and accept donations expend its individual funds for payment to third parties or to undertake any individual liability or obligation on behalf of the Fund, which may be accomplished by retaining the services of a professional fundraiser; and
(xiii) to provide information to Eligible Recipients as necessary to comply with the Ethics in Government Act, 5 U.S.C. app. § 102(a)(2)Company.
Appears in 1 contract
Powers of Manager. Among the other powers stated herein, in connection with the administration of the Fund, The Manager’s discretion and authority are subject to the terms limitations imposed by law and by the Manager’s Certificate of this Agreement Incorporation. Subject to the foregoing and in addition to all other powers and authority conferred limitations imposed by this Agreement or by lawAgreement, the Manager may exercise 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 powersactions on its own behalf in its capacity as Manager or on behalf of the Company:
(a) to acquire, authoritypurchase, 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 discretion: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 enter into maintain such insurance coverage for public liability, fire and casualty, and any agreement necessaryand all other insurance for the protection of the Company, suitablefor the conservation of Company assets, or for any other purpose convenient or beneficial to carry out the purposes 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 Fund 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 agreement incidental thereto or connected therewithPerson in which it has an equity interest from time to time);
(iio) to establish, maintain, and administer one distribute Company cash or more accounts and sub- accounts or Subsidiaries of the Fund other Company assets in accordance with one or more accounts or sub-accounts, if desirable;
(iii) to make Distributions of the Fund Property on behalf of Eligible Recipients, or to Eligible Recipients, pursuant to the terms and conditions of this Agreement;
(ivp) to protect 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 enforce 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 vested 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 the Fund and the Manager by this Agreement by connection with a Member’s exercise of its Redemption Right under Section 7.3 or in connection with a redemption of any method deemed appropriate, including without limitation by judicial proceedingsPreferred Unit;
(v) to take any steps 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 establish reflect redemptions, Capital Contributions, the Fund’s clear title to issuance of Units, the admission of any Fund Property;
(vi) to employ legal counselAdditional Member or any Substitute Member or otherwise, accountantswhich amendment and restatement, advisors, custodians, and other agents notwithstanding anything in connection with the administration or termination of this Fund; to delegate to such legal counsel, accountants, advisors, custodians, and other agents any powers of the Manager except for determining to whom and how Distributions are made; and to pay out of the Fund Property to such legal counsel, accountants, advisors, custodians, and other agents reasonable compensation for services rendered;
(vii) to file, if necessary, any and all Tax Returns in connection with the Fund created hereby and to pay any taxes properly payable by the Fund, if any, out of the Fund Property;
(viii) to amend any schedule with respect Agreement to the timing of any proposed Distributioncontrary, shall not be deemed an amendment to this Agreement, as long as the Manager determines to be necessary, appropriate, matter or desirable, and to make Distributions event being reflected in accordance with such amended schedule and Exhibit A otherwise is authorized by this Agreement;
(ixw) to compromise, adjust, arbitrate, sue on or defend, abandon, or otherwise deal with and settle claims in favor of or against the Fund as take whatever action the Manager shall determine;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 Factor 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, respectively (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 Fund Property is comprised the Manager may owe the Company or the Members or any other persons under this Agreement or of money, to invest in, purchase, retain, any duty stated or sell Permitted Investments;
(xi) in general, except implied by law or equity. Except as otherwise provided by in this Agreement, to exercise any and all rights and powers in the management extent the duties of the Fund 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 Fund Property that any entity could exercise in the management of property owned Manager, in its own right, upon such terms and conditions capacity as the Manager may deem best, and to execute and deliver all instruments and to do all acts that the Manager may deem necessary or advisable to carry out the purposes of this Agreement;
(xii) subject to compliance with the screening procedures set forth in Section 5.1.8 and Schedule Csuch, to solicit and accept donations expend its individual funds for payment to third parties or to undertake any individual liability or obligation on behalf of the Fund, which may be accomplished by retaining the services of a professional fundraiser; and
(xiii) to provide information to Eligible Recipients as necessary to comply with the Ethics in Government Act, 5 U.S.C. app. § 102(a)(2)Company.
Appears in 1 contract
Powers of Manager. Among the other powers stated herein, in connection with the administration of the Fund, The Manager’s discretion and authority are subject to the terms limitations imposed by law and by the Manager’s Certificate of this Agreement Incorporation. Subject to the foregoing and in addition to all other powers and authority conferred limitations imposed by this Agreement or by lawAgreement, the Manager may exercise 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 powersactions on its own behalf in its capacity as Manager or on behalf of the Company:
(a) to acquire, authoritypurchase, 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 discretion: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 enter into maintain such insurance coverage for public liability, fire and casualty, and any agreement necessaryand all other insurance for the protection of the Company, suitablefor the conservation of Company assets, or for any other purpose convenient or beneficial to carry out the purposes 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 Fund 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 agreement incidental thereto or connected therewithPerson in which it has an equity interest from time to time);
(iio) to establish, maintain, and administer one distribute Company cash or more accounts and sub- accounts or Subsidiaries of the Fund other Company assets in accordance with one or more accounts or sub-accounts, if desirable;
(iii) to make Distributions of the Fund Property on behalf of Eligible Recipients, or to Eligible Recipients, pursuant to the terms and conditions of this Agreement;
(ivp) to protect 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 enforce 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 vested 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 the Fund and the Manager by this Agreement by connection with a Member’s exercise of its Redemption Right under Section 7.3 or in connection with a redemption of any method deemed appropriate, including without limitation by judicial proceedingsPreferred Unit;
(v) to take any steps 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 establish reflect redemptions, Capital Contributions, the Fund’s clear title to issuance of Units, the admission of any Fund Property;
(vi) to employ legal counselAdditional Member or any Substitute Member or otherwise, accountantswhich amendment and restatement, advisors, custodians, and other agents notwithstanding anything in connection with the administration or termination of this Fund; to delegate to such legal counsel, accountants, advisors, custodians, and other agents any powers of the Manager except for determining to whom and how Distributions are made; and to pay out of the Fund Property to such legal counsel, accountants, advisors, custodians, and other agents reasonable compensation for services rendered;
(vii) to file, if necessary, any and all Tax Returns in connection with the Fund created hereby and to pay any taxes properly payable by the Fund, if any, out of the Fund Property;
(viii) to amend any schedule with respect Agreement to the timing of any proposed Distributioncontrary, shall not be deemed an amendment to this Agreement, as long as the Manager determines to be necessary, appropriate, matter or desirable, and to make Distributions event being reflected in accordance with such amended schedule and Exhibit A otherwise is authorized by this Agreement;
(ixw) to compromise, adjust, arbitrate, sue on or defend, abandon, or otherwise deal with and settle claims in favor of or against the Fund as take whatever action the Manager shall determine;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 Fund Property is comprised the Manager may owe the Company or the Members or any other persons under this Agreement or of money, to invest in, purchase, retain, any duty stated or sell Permitted Investments;
(xi) in general, except implied by law or equity. Except as otherwise provided by in this Agreement, to exercise any and all rights and powers in the management extent the duties of the Fund 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 Fund Property that any entity could exercise in the management of property owned Manager, in its own right, upon such terms and conditions capacity as the Manager may deem best, and to execute and deliver all instruments and to do all acts that the Manager may deem necessary or advisable to carry out the purposes of this Agreement;
(xii) subject to compliance with the screening procedures set forth in Section 5.1.8 and Schedule Csuch, to solicit and accept donations expend its individual funds for payment to third parties or to undertake any individual liability or obligation on behalf of the Fund, which may be accomplished by retaining the services of a professional fundraiser; and
(xiii) to provide information to Eligible Recipients as necessary to comply with the Ethics in Government Act, 5 U.S.C. app. § 102(a)(2)Company.
Appears in 1 contract
Powers of Manager. Among Every person or entity dealing with Manager acting in good faith will be protected in relying solely upon the other deed, conveyance or assurance of Manager and will not be required to ascertain whether the Foundation has approved any such act. Manager will have the following powers stated herein, in connection with respect to the administration of the FundAccount, subject to the terms provisions of this Agreement and in addition to all other powers and authority conferred by this Agreement or by law, the Manager may exercise the following powers, authority, and discretionSection 5:
(ia) to enter into any agreement necessary, suitable, or convenient to carry out the purposes of the Fund To invest and any other agreement incidental thereto or connected therewith;
(ii) to establish, maintain, and administer one or more accounts and sub- accounts or Subsidiaries of the Fund with one or more accounts or sub-accounts, if desirable;
(iii) to make Distributions of the Fund Property on behalf of Eligible Recipients, or to Eligible Recipients, pursuant to the terms and conditions of this Agreement;
(iv) to protect and enforce the rights vested in the Fund and the Manager by this Agreement by any method deemed appropriate, including without limitation by judicial proceedings;
(v) to take any steps necessary to establish the Fund’s clear title to any Fund Property;
(vi) to employ legal counsel, accountants, advisors, custodians, and other agents in connection with the administration or termination of this Fund; to delegate to such legal counsel, accountants, advisors, custodians, and other agents any powers of the Manager except for determining to whom and how Distributions are made; and to pay out of the Fund Property to such legal counsel, accountants, advisors, custodians, and other agents reasonable compensation for services rendered;
(vii) to file, if necessary, reinvest any and all Tax Returns moneys received in connection with securities and/or property in which it is now or may be hereafter lawful, under the Fund created hereby and to pay any taxes properly payable by the Fund, if any, out laws of the Fund Property;
(viii) to amend any schedule with respect to the timing state of any proposed Distribution, as the Manager determines to be necessary, appropriate, or desirable, and to make Distributions in accordance with such amended schedule and this Agreement;
(ix) to compromise, adjust, arbitrate, sue on or defend, abandon, or otherwise deal with and settle claims in favor of or against the Fund as the Manager shall determine;
(x) to the extent that Fund Property is comprised of moneyIndiana, to invest inits own funds or funds committed to its care and in common funds maintained by Manager; provided, purchasehowever, retain, that Manager will be under no duty to sell or sell Permitted Investments;dispose of any investment made by it solely because such investment ceases to be of a class permitted by such laws.
(xib) in general, except as otherwise provided by this Agreement, to exercise To retain any and all rights and powers property, which may come into its hands in the management form and condition in which it may be, 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 Fund 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 Fund Property that any entity could exercise in property or securities from time to time constituting the management of property owned in its own rightAccount, 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 application of the purchase moneys paid thereon, and the receipts or receipt in writing of Manager for the purchase money of any property sold, or for any money, stocks, funds, shares or securities which may deem bestbe 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 execute exchange, accept and deliver 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 portion thereof, to any other corporation, or to the sale or lease by any other corporation of its property to such corporation, and upon any such consolidation, merger, lease or similar arrangement, to exchange the securities held by Manager for other securities issued in substitution therefor; to pay all instruments such assessments, expenses and to do all acts that the Manager sums of money as it may deem necessary expedient for the protection of the interest of the Account as holder of the socks, bonds, or advisable other securities of any corporation. The term corporation as used in this Agreement will be deemed to carry out the purposes include any company, association, trust or other entity or organization whose shares, certificates of this Agreement;ownership, bonds, obligations or securities of any character are held by Manager.
(xiif) subject to compliance with To take and hold all assets of the screening procedures set forth Account in Section 5.1.8 and Schedule Cits name, to solicit and accept donations to or in the Fund, which may be accomplished by retaining the services name of a professional fundraiser; and
(xiii) to provide information to Eligible Recipients nominee, without disclosing the agency except as necessary to comply with requested by the Ethics in Government Act, 5 U.S.C. app. § 102(a)(2)Foundation or the Consultant.
Appears in 1 contract
Samples: Investment Manager Agreement
