WHEREAS, pursuant to the Operating Agreement, the managing member of the Series shall be responsible for the acquisition and disposition of the Series #TICKER Asset as well as the business of the Series, including the generation of revenue through the usage of the Series #TICKER Asset and the development and execution of the Membership Experience Programs and other member engagement products;
WHEREAS, pursuant to the Operating Agreement, the managing member of the Company intends to maintain an expert network of advisors with experience in relevant industries (the “Advisory Board”), which may, among other things, provide guidance with respect to the appropriate levels of insurance and maintenance costs for the Series #TICKER Asset and approve providers of various services related to the Series #TICKER Asset;
WHEREAS, the Series desires to avail itself of the advice and assistance of the Asset Manager and to appoint and retain the Asset Manager as the asset manager to the Series with respect to the Series #TICKER Asset; and
WHEREAS, the Asset Manager wishes to accept such appointment.
NOW THEREFORE, in consideration of the mutual agreements herein contained, the parties hereby covenant and agree as follows:
1.Appointment of Asset Manager; Acceptance of Appointment. The Series hereby appoints the Asset Manager as asset manager to the Series for the purpose of managing the Series #TICKER Asset. The Asset Manager hereby accepts such appointment.
2.Authority of the Asset Manager.
(a)Except as set forth in Section 2(e) below and in any guidance as may be established from time to time by the managing member of the Series or the Advisory Board, the Asset Manager shall have sole authority and complete discretion over the care, custody, maintenance and management of the Series #TICKER Asset and to take any action that it deems necessary or desirable in connection therewith. The Asset Manager is authorized on behalf of the Series to, among other things:
(ii)engage third party independent contractors for the care, custody, maintenance and management of the #TICKER Asset;
(iv)reasonably make all determinations regarding the calculation of fees, expenses and other amounts relating to the Series #TICKER Asset paid by the Asset Manager hereunder;
(v)deliver invoices to the managing member of the Company for the payment of all fees and expenses incurred by the Series in connection with the maintenance and operation of the Series #TICKER Asset and ensure delivery of payments to third parties for any such services; and
(vi)generally perform any other act necessary to carry out its obligations under this Agreement.
(b)The Asset Manager shall have full responsibility for the maintenance of the Series #TICKER Asset and handling of inspections.
(c)The Asset Manager shall devote such time to its duties under this Agreement as may be deemed reasonably necessary by the Asset Manager in light of the understanding that such duties are expected to be performed only at occasional or irregular intervals.
(d)The Asset Manager may delegate all or any of its duties under this Agreement to any Person who shall perform such delegated duties under the supervision of the Asset Manager on such terms as the Asset Manager shall determine.
(e)Notwithstanding any other provision of this Agreement to the contrary, the Asset Manager shall not have the authority to:
(i)acquire any asset or service for an amount equal to or greater than 1% of the value of the Series #TICKER Asset as of such date, individually, or 3% of the value of the Series #TICKER Asset as of such date, in the aggregate, without the prior consent of the managing member of the Series; or
(ii)sell, transfer or convey the Series #TICKER Asset, provided, however, that the Asset Manager may deliver to the managing member of the Company any offers received by the Asset Manager to purchase the Series #TICKER Asset and any research or analysis prepared by the Asset Manager regarding the potential sale of the Series #TICKER Asset, including market analysis, survey results or information regarding any inquiries received and information regarding potential purchasers.
3.Cooperation. The Asset Manager agrees to use reasonable efforts to make appropriate personnel available for consultation with the Series on matters pertaining to the Series #TICKER Asset and to consult with the managing member of the Series regarding asset management decisions with respect to the Series #TICKER Asset prior to execution. The managing member of the Series may make any reasonable request for the provision of information or for other cooperation from the Asset Manager with respect to its duties under this Agreement, and the Asset Manager shall use reasonable efforts to comply with such request, including without limitation, furnishing the Series with such documents, reports, data and other information as the managing member of the Series may reasonably request regarding the Series #TICKER Asset and the Asset Manager’s performance hereunder or compliance with the terms hereof.
(a)None of the Asset Manager, its Affiliates, or any of their respective directors, members, stockholders, partners, officers, employees or controlling persons (collectively, “Managing Parties”) shall be liable to the Series or the Company for (i) any act or omission performed or failed to be performed by any Managing Party (other than any criminal wrongdoing) arising from the exercise of such Managing Party’s rights or obligations hereunder, or for any losses, claims, costs, damages, or liabilities arising therefrom, in the absence of criminal wrongdoing, willful misfeasance or gross negligence on the part of such Managing Party, (ii) any tax liability imposed on the Series or the Series #TICKER Asset, or (iii) any losses due to the actions or omissions of the Series or any brokers or other current or former agents or advisers of the Series. For purposes of this Agreement, “Affiliate” means, with respect to any person, any other person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with the person in question. As used herein, the term control means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through ownership of voting securities, by contract or otherwise.
(b)To the fullest extent permitted by applicable law, the Series will indemnify the Asset Manager and its Managing Parties against any and all losses, damages, liabilities, judgments, costs and expenses (including, without limitation, reasonable attorneys’ fees and disbursements) and amounts paid in settlement (collectively, “Losses”) to which such person may become subject in connection with any matter arising out of or in connection with this Agreement, except to the extent
that any such Loss results solely from the acts or omissions of a Managing Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Managing Party’s fraud, willful misconduct or gross negligence. If this Section 5 or any portion hereof shall be invalidated on any ground by a court of competent jurisdiction, the Series shall nevertheless indemnify the Managing Party for any Losses incurred to the full extent permitted by any applicable portion of this Section that shall not have been invalidated.
(c)The Asset Manager gives no warranty as to the performance or profitability of the Series #TICKER Asset or as to the performance of any third party engaged by the Asset Manager hereunder.
(d)The Asset Manager may rely upon and shall be protected in acting or refraining from action upon any instruction from, or document signed by, any authorized person of the Series or other person reasonably believed by the Asset Manager to be authorized to give or sign the same whether or not the authority of such person is then effective.
6.Assignments. This Agreement may not be assigned by either party without the consent of the other party. In performing its obligations under this Agreement, the Asset Manager may, at its discretion, delegate any or all of its rights, powers and functions under this Agreement to any Person in accordance with Section 2(d) without the need for the consent of the Series, provided that the Asset Manager’s liability to the Series for all matters so delegated shall not be affected by such delegation.
(a)The relationship between the Asset Manager and the Series is as described in this Agreement and nothing in this Agreement, none of the services to be provided pursuant to this Agreement, nor any other matter, shall oblige the Asset Manager to accept responsibilities that are more extensive than those set forth in this Agreement.
(b)The Asset Manager’s services to the Series are not exclusive. The Asset Manager may engage in other activities on behalf of itself, any other Managing Party and other clients (which, for the avoidance of doubt, may include other series of the Company). The Series acknowledges and agrees that the Asset Manager may, without prior notice to the Series, give advice to such other clients. The Asset Manager shall not be liable to account to the Series for any profits, commission or remuneration made or received in respect of transactions effected pursuant to the Asset Manager’s advice to another client and nor will the Asset Manager’s fees be abated as a result.
If to the Series:
c/o RSE Collection Manager, LLC
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
If to the Asset Manager:
Rally Holdings LLC
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
13.Independent Contractor. For all purposes of this Agreement, the Asset Manager shall be an independent contractor and not an employee or dependent agent of the Series nor shall anything herein be construed as making the Series a partner or co-venturer with the Asset Manager, any other Managing Party or any of the Asset Manager’s other clients. Except as expressly provided in this Agreement or as otherwise authorized in writing by the Series, the Asset Manager shall have no authority to bind, obligate or represent the Series.
14.Entire Agreement; Amendment; Severability. This Agreement states the entire agreement of the parties with respect to the subject matter hereof and supersedes any prior agreements relating to the subject matter hereof, and may not be supplemented or amended except in writing signed by the parties. If any provision or any part of a provision of this Agreement shall be found to be void or unenforceable, it shall not affect the remaining part, which shall remain in full force and effect.
(a)This Agreement and the rights of the parties shall be governed by and construed in accordance with the laws of the State of Delaware.
(b)The parties irrevocably agree that the Court of Chancery of the State of Delaware is to have the exclusive jurisdiction to settle any disputes which may arise out of in connection with this Agreement and accordingly any suit, action or proceeding arising out of or in connection with this Agreement shall be brought in such courts.
18.Counterparts. This Agreement may be executed in one or more counterparts with the same force and effect as if each of the signatories had executed the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly appointed agents so as to be effective on the day, month and year first above written.
RALLY HOLDINGS LLC
By: RSE MARKETS, INC., its sole member
SERIES #TICKER, A SERIES OF RSE COLLECTION, LLC
By: RSE COLLECTION, LLC
By: RSE COLLECTION MANAGER, LLC, its managing member
By: RALLY HOLDINGS LLC, its sole member
By: RSE MARKETS, INC., its sole member
THE SERIES #TICKER ASSET