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Full Doc
 | 2002 |
Equipment Lease and Operating Agreement
Equipment Lease and Operating Agreement (11K)
Doc #117497: Click preview link for longer preview.
EQUIPMENT LEASE AND OPERATING AGREEMENT
This Agreement, dated __________________, between:
Lessee:
Total Recycling Services of Connecticut, Inc.
PO Box 436
Ridgefield, NJ 07657
and
Owner:
Connecticut Waste Oil, Inc.
And Joseph Peruti
1250 Old Colony Road
Wallingford, CT 06492
W I T N E S S E T H
WHEREAS, the Owner possess certain equipment and other necessary tools
for the collection of waste oil, used oil filters, and other hazardous and
non-hazardous recyclable waste; and
WHEREAS, the Lessee contracted to purchase some of the assets of the
owner and wishes to assume business operations prior to closing; and
WHEREAS, the Owner and Lessee wish to enter an agreement whereby the
Owner will lease necessary equipment to Lessee prior to closing;
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth below, the parties agree as follows:
1. Operating Agreement. Owner agrees to lease to Lessee exclusive use
of all equipment subject to this lease, and to provide lessee customer contacts
and information so as to allow Lessee to service customers.
117497
|
Whitewing
As referenced in this Equipment Lease and Operating Agreement:
WHITEWING ENVIRONMENTAL CORP –
WHITEWING ENVIRONMENTAL CORP
_____________
dt 1849667
;
|
Whitewing
As referenced in this Equipment Lease and Operating Agreement:
WHITEWING ENVIRONMENTAL CORP –
WHITEWING ENVIRONMENTAL CORP
_____________
dt 1852453
|
Preview
Full Doc
| 2002 |
Outsourcing and Operating Agreement [Amended and Restated No. 3]
Outsourcing and Operating Agreement [Amended and Restated No. 3] (282K)
Doc #125703: Click preview link for longer preview.
================================================================================
THIRD AMENDED AND RESTATED OUTSOURCING AND OPERATING AGREEMENT *
dated as of September 30, 2002
among
NOVATION, LLC,
VHA INC.,
UNIVERSITY HEALTH SYSTEM CONSORTIUM,
HEALTHCARE PURCHASING PARTNERS INTERNATIONAL, LLC,
and
NEOFORMA, INC.
================================================================================
_________________
* Confidential treatment requested: Certain portions of this agreement have
been omitted pursuant to a request for confidential treatment and, where
applicable, have been marked with an asterisk to denote where omissions
have been made. The confidential material has been filed separately with
the Securities and Exchange Commission.
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
----
{S} {C}
1. DEFINITIONS ...................................................... 2
2. NOVATION OBLIGATIONS ............................................. 9
2.1 Agency Relationship ..................................... 9
2.2 Novation Duties ......................................... 9
2.3 Certain Contracts ....................................... 10
3. NEOFORMA OBLIGATIONS ............................................. 11
3.1 Service ................................................. 11
3.2 Service Levels .......................................... 11
3.3 Cooperation with Novation ............................... 11
3.4 Employee Incentives ..................................... 11
3.5 Quality Assurance Program ............................... 12
3.6 Notice of Materially Adverse Facts ...................... 12
3.7 Case Studies ............................................ 12
3.8 Supplier Sign-Up and Integration ........................ 12
4. THE MARKETPLACE .................................................. 13
4.1 Maintenance of Marketplace .............................. 13
4.2 Consultation ............................................ 13
4.3 Provision of Non-Contract Product Information ........... 13
4.4 Provision of Contract Product Information ............... 13
4.5 Independent Users ....................................... 13
4.6 Multiple Memberships .................................... 14
4.7 User Registration ....................................... 14
4.8 Delivery and Order Fulfillment .......................... 14
4.9 Removal of Products from the Marketplace ................ 14
4.10 Customized Marketplaces ................................. 14
4.11 Links ................................................... 15
4.12 Reasonable Assistance ................................... 15
5. NOVATION MARKETPLACE AND HPPI MARKETPLACE ........................ 15
5.1 Development ............................................. 15
5.2 Hosting ................................................. 15
5.3 Delivery and Order Fulfillment .......................... 15
5.4 Display of Material ..................................... 15
5.5 Reports and Meetings .................................... 15
5.6 Retained Contracts ...................................... 16
5.7 Marketing. .............................................. 16
5.8 Neoforma Auction ........................................ 16
6. EXCLUSIVITY AND RIGHT OF FIRST OFFER ............................. 17
6.1 Novation, VHA, UHC and HPPI Exclusivity ................. 17
{/TABLE}
{PAGE}
{TABLE}
{S} {C}
6.2 Neoforma Exclusivity .................................... 17
6.3 Right of First Offer for Novation and Neoforma .......... 18
6.4 First Offer for Non-Exclusive Services .................. 18
7. LICENSES AND OWNERSHIP ........................................... 19
7.1 Ownership of Marks ...................................... 19
7.2 Novation Marks .......................................... 19
7.3 Neoforma Marks .......................................... 19
7.4 VHA, UHC and HPPI Marks ................................. 20
7.5 Ownership of Neoforma Materials and Novation Materials .. 20
7.6 Neoforma Materials ...................................... 20
7.7 Novation Materials ...................................... 20
7.8 Development of Tools .................................... 20
7.9 Access License .......................................... 21
8. FEES AND TAXES ................................................... 21
8.1 Contract Product Transaction Fees ....................... 21
8.2 Revenue Sharing ......................................... 22
8.3. Establishment of * ...................................... 23
8.4 Reporting and Payment of Novation Marketplace Transaction
Fees and Revenue Sharing ................................ 23
8.5 * ....................................................... 24
8.6 Taxes ................................................... 25
8.7 New Markets ............................................. 25
8.8 Product Returns ......................................... 25
8.9 Neoforma Auction and other non-GPO marketplaces ......... 25
8.10 Distribution or Licensing of Software and other
Technology Solutions .................................... 25
8.11 Other Expenses .......................................... 26
9. TERM AND TERMINATION ............................................. 26
9.1 Initial Term ............................................ 26
9.2 Renewal and Extension of Term ........................... 27
9.3 Termination for Cause ................................... 27
9.4 Termination for Insolvency Events ....................... 27
9.5 Termination for Rejection in Bankruptcy ................. 27
9.6 Termination Upon Neoforma Change of Control ............. 28
9.7 Return of Materials ..................................... 28
9.8 Survival ................................................ 28
9.9 Termination Assistance Services ......................... 28
9.10 Third Party Products .................................... 30
10. USER DATA ........................................................ 31
10.1 Registration ............................................ 31
{/TABLE}
_______________
* Confidential treatment requested.
ii
{PAGE}
{TABLE}
{S} {C}
10.2 Transaction Database .................................... 31
10.3 Member Data ............................................. 31
10.4 Aggregated Member Data .................................. 32
10.5 Transaction Database .................................... 32
10.6 License Grant of Information to Novation ................ 32
10.7 No Other Licenses or Use ................................ 32
10.8 Other Data .............................................. 33
10.9 Neoforma Information .................................... 33
11. SAFEGUARDING OF DATA; CONFIDENTIALITY ............................ 33
11.1 Novation Data ........................................... 33
11.2 Confidentiality ......................................... 34
12. REPRESENTATIONS AND WARRANTIES ................................... 35
12.1 Representations by Neoforma ............................. 35
12.2 Representations by Novation, VHA, UHC and HPPI .......... 36
12.3 Warranty Disclaimer ..................................... 38
13. USE OF SUBCONTRACTORS ............................................ 38
13.1 Generally ............................................... 38
13.2 Novation's Right to Revoke Approval ..................... 38
13.3 Continuing Responsibility ............................... 38
13.4 Confidential Information ................................ 38
14. INSURANCE ........................................................ 38
14.1 Insurance ............................................... 38
14.2 Proof of Insurance ...................................... 39
15. INDEMNITY ........................................................ 39
15.1 Neoforma Indemnity ...................................... 39
15.2 Novation Indemnity ...................................... 40
15.3 Infringement Claims ..................................... 40
15.4 Indemnity Procedures .................................... 41
16. LIMITATION OF LIABILITY .......................................... 41
16.1 Limitations ............................................. 41
16.2 Exceptions .............................................. 42
16.3 Liquidated Damages ...................................... 42
17. AUDIT RIGHTS ..................................................... 43
17.1 General ................................................. 43
17.2 Frequency of Audits ..................................... 44
17.3 Auditors ................................................ 44
17.4 Record Retention ........................................ 44
17.5 Cooperation ............................................. 44
17.6 Overcharges ............................................. 44
18. DISPUTE RESOLUTION ............................................... 44
{/TABLE}
iii
{PAGE}
{TABLE}
{S} {C}
18.1 Resolution of Disputes .................................. 44
18.2 Negotiations and Escalation ............................. 45
18.3 Appointment of Arbitral Body ............................ 45
18.4 Qualifications of Arbitrator ............................ 45
18.5 Initiation of Arbitration and Procedures ................ 45
18.6 Procedures .............................................. 46
18.7 Governing Law; Jurisdiction ............................. 46
18.8 Arbitration Award ....................................... 46
18.9 Cooperation of the Parties .............................. 47
18.10 Costs ................................................... 47
18.11 Judgment on the Award; Enforcement ...................... 47
18.12 Preservation of Equitable Relief; Third-Party
Litigation .............................................. 47
18.13 Continued Performance ................................... 48
19. GUARANTY OF PERFORMANCE .......................................... 48
19.1 VHA and UHC Guarantees .................................. 48
19.2 VHA and UHC Waivers ..................................... 48
19.3 Scope of Liability ...................................... 49
19.4 Continued Performance by Neoforma ....................... 50
20. GENERAL PROVISIONS ............................................... 50
20.1 No Waiver ............................................... 50
20.2 Entire Agreement ........................................ 51
20.3 Publicity ............................................... 51
20.4 Covenant of Good Faith .................................. 51
20.5 Compliance with Laws and Regulations .................... 51
20.6 Assignment; Successors and Assigns ...................... 51
20.7 Governing Law ........................................... 51
20.8 Notices ................................................. 52
20.9 No Agency ............................................... 52
20.10 Force Majeure ........................................... 53
20.11 Interest ................................................ 53
20.12 Program Management ...................................... 54
20.13 Severability ............................................ 54
20.14 Counterparts ............................................ 54
20.15 Headings................................................. 54
20.16 Section 365(n) Matters .................................. 54
{/TABLE}
iv
{PAGE}
EXHIBITS:
Exhibit A Marks +
Exhibit B Current Marks Usage Guidelines for Novation +
Exhibit C Current Marks Usage Guidelines for Neoforma +
Exhibit D Current Marks Usage Guidelines for VHA, UHC and HPPI +
Exhibit E Reports and Other Information Requirements +
Exhibit F Program Management +
Exhibit G Minimum Fees
Exhibit H *
Exhibit I Target Fee Levels
Exhibit J 2002 Monthly * Schedule
Exhibit K Current Functionality Roadmap
Exhibit L Collaborative Marketing Agreement
Exhibit M Collaborative Development Process
Exhibit N Service Level Specifications
_______________
+ Exhibit filed previously and not included here
* Confidential treatment requested.
v
{PAGE}
THIRD AMENDED AND RESTATED
OUTSOURCING AND OPERATING AGREEMENT
This Third Amended and Restated Outsourcing and Operating Agreement
("Agreement") effective as of September 30, 2002 (the "Effective Date"), by and
among Neoforma, Inc., (formerly named Neoforma.com, Inc.) a Delaware corporation
with offices at 3061 Zanker Road, San Jose, California 95134 ("Neoforma"),
Novation, LLC, a Delaware limited liability company with offices at 125 East
John Carpenter Freeway, Irving, Texas 75062 ("Novation"), Healthcare Purchasing
Partners International, LLC, a Delaware limited liability company with offices
at 125 East John Carpenter Freeway, Irving, Texas 75062 ("HPPI"), VHA Inc., a
Delaware corporation with offices at 220 East Las Colinas Boulevard, Irving,
Texas 75039-5500 ("VHA"), and University Health System Consortium, an Illinois
corporation with offices at 2001 Spring Road, Suite 700, Oak Brook, Illinois
60523 ("UHC").
RECITALS
WHEREAS, Neoforma is a provider of Internet (as defined in Section 1)
e-commerce services to the healthcare industry facilitating the sale, rental or
lease of new and used equipment, products, supplies, services information and
other content, and provides information regarding various healthcare facilities
and equipment through its online offerings and programs;
WHEREAS, VHA and UHC are organizations whose patrons are hospitals and
healthcare providers, who view e-commerce as an essential part of their
cooperative purchasing programs on behalf of their patrons for the future and
who desire to more fully develop the services they render to their patrons
through this Agreement;
WHEREAS, VHA and UHC together own all the ownership interests in Novation
and HPPI;
WHEREAS, Novation is a contracting agent that develops and delivers supply
chain management agreements, programs and services on behalf of VHA and UHC and
their patrons;
WHEREAS, HPPI is a GPO that serves healthcare organizations that are not
members of VHA and UHC and other GPOs and which develops and delivers
supply-chain management programs and services to such healthcare organizations;
WHEREAS, the parties wish to establish a long-term, global relationship to
enable the parties to achieve increased efficiency and cost savings through
Internet-based technology and pursuant to which (i) Neoforma will develop and
manage the Novation Marketplace and HPPI Marketplace (as defined in Section 1),
e-commerce web sites for the benefit of the members of VHA and UHC, the
associated healthcare organizations of HPPI and for the benefit of other users
unaffiliated with VHA, UHC or HPPI, (ii) Novation will serve as the contracting
agent for Neoforma by recruiting, contracting with and managing relationships
with healthcare equipment manufacturers and service suppliers on Neoforma's
behalf and (iii) VHA and UHC will provide marketing support for the Novation
Marketplace and HPPI Marketplace, guarantee Novation's
1
{PAGE}
obligations to the extent provided under this Agreement and enter into the
exclusivity provisions hereunder;
WHEREAS, the Parties have previously entered into an Outsourcing and
Operating Agreement (the "Original Outsourcing and Operating Agreement"), dated
as of March 30, 2000 (the "Original Effective Date"), and have also previously
entered into an amended and restated Outsourcing and Operating Agreement, dated
as of May 24, 2000 (the "First Amended and Restated Outsourcing and Operating
Agreement"), a second amended and restated Outsourcing and Operating Agreement,
dated as of January 1, 2001 (the "Second Amended and Restated Outsourcing
Agreement"), and a first amendment to the Second Amended and Restated
Outsourcing Agreement, dated as of July 1, 2001 (the "First Amendment"), and
each Party desires to amend and restate the Second Amended and Restated
Outsourcing and Operating Agreement and the First Amendment as set forth herein;
and
WHEREAS, in consideration for the services initially agreed to be provided
by VHA and UHC pursuant to the Original Outsourcing and Operating Agreement and
the First Amended and Restated Outsourcing and Operating Agreement, Neoforma
issued to VHA and UHC shares of, and warrants to purchase, common stock of
Neoforma.
NOW, THEREFORE, for good and valuable consideration, the parties agree as
follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the respective
meanings set forth below. Other capitalized terms shall have the meanings set
forth elsewhere in this Agreement.
"Adjusted Gross Transaction Value(s)" means, with regard to a confirmed
purchase, rental or lease on the Novation Marketplace or HPPI Marketplace, the *
which are related to the Product purchased, rented or leased.
"Affiliate(s)" means, with respect to a specified person, any other person
that, directly or indirectly, through one or more intermediaries, controls, is
controlled by or is under common control with such specified person. Neoforma,
on the one hand, and Novation, VHA and/or UHC, on the other hand, shall not be
Affiliates.
"Aggregated Member Data" means all or any of an aggregate of the
Information relating to any two or more Members.
"API(s)" means language and messaging formats, in human and computer
readable form, that define how programs interact with an operating system, a
database, with functions in other programs, with communication systems, or with
hardware drivers.
125703
|
Neoforma
As referenced in this Outsourcing and Operating Agreement [Amended and Restated No. 3]:
NEOFORMA, INC. – 1
================================================================================
THIRD AMENDED AND RESTATED OUTSOURCING AND OPERATING AGREEMENT *
dated as of September 30, 2002
among
NOVATION, LLC,
VHA INC.,
UNIVERSITY HEALTH SYSTEM CONSORTIUM,
HEALTHCARE PURCHASING PARTNERS INTERNATIONAL, LLC,
and
NEOFORMA, INC.
================================================================================
_________________
* Confidential treatment requested: Certain portions of this agreement have
been omitted pursuant to a request for confidential treatment and, where
applicable, have been marked with an asterisk to
_____________
Neoforma, Inc. – THIRD AMENDED AND RESTATED
OUTSOURCING AND OPERATING AGREEMENT
This Third Amended and Restated Outsourcing and Operating Agreement
("Agreement") effective as of September 30, 2002 (the "Effective Date"), by and
among Neoforma, Inc. , (formerly named Neoforma.com, Inc.) a Delaware corporation
with offices at 3061 Zanker Road, San Jose, California 95134 ("Neoforma"),
Novation, LLC, a Delaware limited liability company with offices at
_____________
Neoforma, Inc. – 60523 Chicago, Illinois 60606
Facsimile: (630) 954-4730 Facsimile: (312) 984-7700
Attn: Executive Vice President Attn: Virginia H. Holden, Esq.
General Counsel
If to Neoforma: With a copy to:
Neoforma, Inc. Fenwick & West LLP
3061 Zanker Road Two Palo Alto Square
San Jose, California 95134 Palo Alto, California 94306
Facsimile: (408) 468-4000 Facsimile: (650) 494-1417
Attn: General Counsel
_____________
NEOFORMA, INC. – may be
entered, to obtain such intellectual property from the bankruptcy
trustee.
54
{PAGE}
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
NEOFORMA, INC. NOVATION, LLC
By: /s/ Robert J. Zollars By: /s/ Mark McKenna
---------------------------------------- --------------------------------
Name: Robert J. Zollars Name: Mark McKenna
-------------------------------------- ------------------------------
Title: Chairman and Chief Executive Officer Title: President
------------------------------------- -----------------------------
Date: September 30,
_____________
dt 1463585
;
 Baker Botts
As referenced in this Outsourcing and Operating Agreement [Amended and Restated No. 3]:
Baker Botts – personal
delivery, when received, as applicable:
If to Novation: With a copy to:
Novation, LLC Baker Botts L.L.P.
125 East John Carpenter Freeway 2001 Ross Avenue
Irving, Texas 75062 Dallas,
dt 29398
;
Fenwick & West
As referenced in this Outsourcing and Operating Agreement [Amended and Restated No. 3]:
Fenwick & West – Virginia H. Holden, Esq.
General Counsel
If to Neoforma: With a copy to:
Neoforma, Inc. Fenwick & West LLP
3061 Zanker Road Two Palo Alto Square
San Jose, California 95134 Palo Alto, California
dt 35909
;
|
McDermott Will
As referenced in this Outsourcing and Operating Agreement [Amended and Restated No. 3]:
McDermott, Will – C. Kevin Barnette, Esq.
If to UHC: With a copy to:
University Health System Consortium McDermott, Will & Emery
2001 Spring Road, Suite 700 227 West Monroe Street
Oak Brook, Illinois 60523
dt 38196
;
Skadden
As referenced in this Outsourcing and Operating Agreement [Amended and Restated No. 3]:
Skadden, – Counsel Attn: Sarah M. Rechter, Esq.
If to VHA: With a copy to:
VHA, Inc. Skadden, Arps, Slate, Meagher & Flom LLP
220 East Las Colinas Boulevard 1440 New York Avenue,
dt 34150
;
More... |
Preview
Full Doc
| 2003 |
GSM Operating Agreement
GSM Operating Agreement (64K)
Doc #125815: Click preview link for longer preview.
--------------------------------------------------------------------------------
GSM OPERATING AGREEMENT
between
AT&T WIRELESS SERVICES, INC.
and
DOBSON CELLULAR SYSTEMS, INC.
Dated as of July 11, 2003
--------------------------------------------------------------------------------
{PAGE}
TABLE OF CONTENTS
{Table}
{Caption}
Page
----
{S} {C} {C}
ARTICLE 1 DEFINITIONS................................................... 1
ARTICLE 2 GSM SYSTEMS................................................... 5
Section 2.1 Construction................................. 5
Section 2.2 Interoperability............................. 5
Section 2.3 Network Performance Standards................ 6
Section 2.4 Core Features and Services................... 6
ARTICLE 3 EDGE AND NEW TECHNOLOGIES..................................... 6
Section 3.1 EDGE......................................... 6
Section 3.2 New Technologies............................. 7
ARTICLE 4 LIMITED EXCLUSIVITY........................................... 7
Section 4.1 Limited Exclusivity.......................... 7
Section 4.2 Competitive Transactions..................... 8
Section 4.3 Limitations on Relief........................ 8
Section 4.4 AWS TDMA Cell Sites.......................... 9
Section 4.5 Roadrunner Arrangements...................... 9
ARTICLE 5 ROAMING PREFERENCE............................................ 9
Section 5.1 Roaming Preference........................... 9
ARTICLE 6 OTHER AGREEMENTS.............................................. 10
Section 6.1 Further Assurances........................... 10
Section 6.2 Reporting Obligations........................ 10
Section 6.3 Test Procedures.............................. 10
Section 6.4 Funding...................................... 10
Section 6.5 Compliance with Law.......................... 10
Section 6.6 Confidentiality.............................. 10
Section 6.7 Force Majeure................................ 11
ARTICLE 7 TERM AND TERMINATION.......................................... 12
Section 7.1 Term......................................... 12
Section 7.2 [Section intentionally omitted].............. 12
Section 7.3 Termination by AWS........................... 12
Section 7.4 Termination by DCS........................... 12
Section 7.5 Effect of Termination........................ 13
ARTICLE 8 DISPUTE RESOLUTION............................................ 13
ARTICLE 9 INDEMNIFICATION............................................... 15
Section 9.1 Indemnification by DCS....................... 15
Section 9.2 Indemnification by AWS....................... 15
Section 9.3 Procedures................................... 16
{/Table}
{PAGE}
{Table}
{S} {C} {C}
ARTICLE 10 MISCELLANEOUS................................................ 17
Section 10.1 Entire Agreement............................. 17
Section 10.2 Amendment; Waiver............................ 17
Section 10.3 Specific Performance......................... 17
Section 10.4 Remedies Cumulative.......................... 17
Section 10.5 Successors and Assigns....................... 18
Section 10.6 No Third Party Beneficiaries................. 18
Section 10.7 Further Assurances........................... 18
Section 10.8 Notices...................................... 18
Section 10.9 Governing Law................................ 19
Section 10.10 Severability................................. 19
Section 10.11 Independent Contractors...................... 19
Section 10.12 Counterparts................................. 19
Section 10.13 Construction................................. 20
{/Table}
{Table}
{Caption}
Schedules
---------
{S} {C}
Schedule I DCS Markets
Schedule II Comparable Markets
Schedule 2.1 Construction Plan
Schedule 2.3 Network Performance Standards
Schedule 2.4 Core Features and Services
Schedule 4.1 Overlap Markets
Schedule 4.4 AWS TDMA Cell Sites
{/Table}
{PAGE}
GSM OPERATING AGREEMENT
GSM Operating Agreement, dated as of July 11, 2003, between AT&T
Wireless Services , Inc., a Delaware corporation ("AWS"), and Dobson Cellular
Systems, Inc., an Oklahoma corporation ("DCS").
WHEREAS, in order to induce AWS to enter into the GSM Roaming Agreement
(as defined below), DCS has agreed to construct and operate GSM/GPRS Systems (as
defined below) to provide GSM/GPRS roaming services to customers of AWS in the
DCS Markets (as defined below) in accordance with the terms of this Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
ARTICLE 1
DEFINITIONS
"3GPP" means Third Generation Partnership Project.
"ACC" means American Cellular Corporation.
An "affiliate" of, or person "affiliated" with, a specified person, is
a person that directly, or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with, the person
specified. ACC shall not be considered an affiliate of DCS for purposes of this
Agreement.
"AWS" is defined in the preamble.
"AWS GSM Systems" means GSM/GPRS Systems owned by AWS or its
affiliates.
"AWS Indemnified Party" is defined in Section 9.1.
"AWS TDMA Systems" means TDMA Systems owned by AWS or its affiliates.
"Change of Control of AWS" means (i) any circumstance, event or
transaction following which any person or group (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act and the regulations thereunder) is
the "beneficial owner" (as such term is used in Rules 13d-3, 13d-5 or 16a-1
under the Exchange Act) of more than 50% of the voting power of the Voting
Securities of AWS (on a fully diluted basis, treating Equity Interests of AWS
issuable upon the conversion, exchange or exercise of convertible or
exchangeable securities, or other rights to acquire Equity Interests, as issued
and outstanding) or otherwise has the power, acting alone, to control AWS; or
(ii) the sale of all or substantially all of AWS's stock, business or assets
(including through a merger or otherwise).
"Cingular" means Cingular Wireless, LLC.
"Claim" is defined in Section 9.3(a).
125815
|
AT&T Wireless
As referenced in this GSM Operating Agreement:
AT&T WIRELESS SERVICES, – SEQUENCE}5
{FILENAME}d07701exv10w29.txt
{DESCRIPTION}GSM/GPRS OPERATING AGREEMENT - DOBSON CELLULAR
{TEXT}
{PAGE}
EXHIBIT 10.29
Execution Copy
--------------------------------------------------------------------------------
GSM OPERATING AGREEMENT
between
AT&T WIRELESS SERVICES, INC.
and
DOBSON CELLULAR SYSTEMS, INC.
Dated as of July 11, 2003
--------------------------------------------------------------------------------
{PAGE}
TABLE OF CONTENTS
{Table}
{Caption}
Page
----
{S} {C} {C}
_____________
AT&T
Wireless Services – Markets
Schedule 4.4 AWS TDMA Cell Sites
{/Table}
{PAGE}
GSM OPERATING AGREEMENT
GSM Operating Agreement, dated as of July 11, 2003, between AT&T
Wireless Services , Inc., a Delaware corporation ("AWS"), and Dobson Cellular
Systems, Inc., an Oklahoma corporation ("DCS").
WHEREAS, in order to induce AWS to enter
_____________
AT&T Wireless Services, – to:
Edwards & Angell, LLP
2800 Financial Plaza
Providence, RI 02903
Attention: David K. Duffell
Fax: (401) 276-6611
18
{PAGE}
If to AWS:
AT&T Wireless Services, Inc.
7277 164th Avenue, NE
Redmond, WA 98052
Attention: Mark D. Bradner
Fax: (425) 580-8405
with a copy to:
Friedman Kaplan
_____________
AT&T WIRELESS SERVICES, – otherwise.
[SIGNATURE PAGE FOLLOWS]
20
{PAGE}
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
AT&T WIRELESS SERVICES, INC.
By /s/ Mark Bradner
-------------------------
Name:
Title:
DOBSON CELLULAR SYSTEMS, INC.
By /s/ Everett R. Dobson
-------------------------
Name:
Title:
{PAGE}
SCHEDULE I
DCS
_____________
dt 158604
;
Cingular
As referenced in this GSM Operating Agreement:
Cingular Wireless, LLC. – power, acting alone, to control AWS; or
(ii) the sale of all or substantially all of AWS's stock, business or assets
(including through a merger or otherwise).
"Cingular" means Cingular Wireless, LLC.
"Claim" is defined in Section 9.3(a).
{PAGE}
"Comparable AWS Market" means, with respect to any DCS Market set forth
on Schedule II, the AWS market(s) set
_____________
dt 1532083
;
|
Dobson Cellular
As referenced in this GSM Operating Agreement:
DOBSON CELLULAR SYSTEMS, – GSM/GPRS OPERATING AGREEMENT - DOBSON CELLULAR
{TEXT}
{PAGE}
EXHIBIT 10.29
Execution Copy
--------------------------------------------------------------------------------
GSM OPERATING AGREEMENT
between
AT&T WIRELESS SERVICES, INC.
and
DOBSON CELLULAR SYSTEMS, INC.
Dated as of July 11, 2003
--------------------------------------------------------------------------------
{PAGE}
TABLE OF CONTENTS
{Table}
{Caption}
Page
----
{S} {C} {C}
ARTICLE 1 DEFINITIONS................................................... 1
ARTICLE
_____________
Dobson Cellular
Systems, – GSM OPERATING AGREEMENT
GSM Operating Agreement, dated as of July 11, 2003, between AT&T
Wireless Services , Inc., a Delaware corporation ("AWS"), and Dobson Cellular
Systems, Inc., an Oklahoma corporation ("DCS").
WHEREAS, in order to induce AWS to enter into the GSM Roaming Agreement
(as defined below), DCS
_____________
Dobson Cellular Systems, – the
applicable addresses set forth below (or such other address as the recipient may
specify in accordance with this Section):
If to DCS:
Dobson Cellular Systems, Inc.
14201 Wireless Way
Oklahoma City, OK 73134
Attention: General Counsel
Fax: (405) 529-8765
with a copy to:
Edwards & Angell, LLP
_____________
DOBSON CELLULAR SYSTEMS, – hereto have executed this Agreement as
of the date first above written.
AT&T WIRELESS SERVICES, INC.
By /s/ Mark Bradner
-------------------------
Name:
Title:
DOBSON CELLULAR SYSTEMS, INC.
By /s/ Everett R. Dobson
-------------------------
Name:
Title:
{PAGE}
SCHEDULE I
DCS MARKETS
Cumberland MSA
Enid MSA
Hagerstown MSA
Anchorage MSA
AK-
_____________
dt 181607
;
More... |
Preview
Full Doc
| 2003 |
GSM Operating Agreement
GSM Operating Agreement (69K)
Doc #130518: Click preview link for longer preview.
================================================================================
GSM OPERATING AGREEMENT
between
AT&T WIRELESS SERVICES, INC.
and
AMERICAN CELLULAR CORPORATION
Dated as of July 11, 2003
================================================================================
{PAGE}
TABLE OF CONTENTS
{Table}
{Caption}
Page
----
{S} {C}
ARTICLE 1 DEFINITIONS....................................................................................1
ARTICLE 2 GSM SYSTEMS....................................................................................5
Section 2.1 Construction..................................................................5
Section 2.2 Interoperability..............................................................6
Section 2.3 Network Performance Standards.................................................6
Section 2.4 Core Features and Services....................................................6
ARTICLE 3 EDGE AND NEW TECHNOLOGIES......................................................................7
Section 3.1 EDGE..........................................................................7
Section 3.2 New Technologies..............................................................7
ARTICLE 4 LIMITED EXCLUSIVITY............................................................................7
Section 4.1 Limited Exclusivity...........................................................7
Section 4.2 Competitive Transactions......................................................8
Section 4.3 Limitations on Relief.........................................................9
ARTICLE 5 ROAMING PREFERENCE............................................................................10
Section 5.1 Roaming Preference...........................................................10
Section 5.2 *
ARTICLE 6 OTHER AGREEMENTS..............................................................................10
Section 6.1 Further Assurances...........................................................10
Section 6.2 Reporting Obligations........................................................10
Section 6.3 Test Procedures..............................................................11
Section 6.4 Funding......................................................................11
Section 6.5 Compliance with Law..........................................................11
Section 6.6 Confidentiality..............................................................11
Section 6.7 Force Majeure................................................................12
ARTICLE 7 TERM AND TERMINATION..........................................................................13
Section 7.1 Term.........................................................................13
Section 7.2 Automatic Termination........................................................13
Section 7.3 Termination by AWS...........................................................13
Section 7.4 Termination by ACC...........................................................14
Section 7.5 Effect of Termination........................................................14
ARTICLE 8 DISPUTE RESOLUTION............................................................................14
{/Table}
----------
* Confidential information has been omitted and filed separately with the
Securities and Exchange Commission
{PAGE}
{Table}
{S} {C}
ARTICLE 9 INDEMNIFICATION...............................................................................16
Section 9.1 Indemnification by ACC.......................................................16
Section 9.2 Indemnification by AWS.......................................................16
Section 9.3 Procedures...................................................................17
ARTICLE 10 MISCELLANEOUS................................................................................18
Section 10.1 Entire Agreement.............................................................18
Section 10.2 Amendment; Waiver............................................................18
Section 10.3 Specific Performance.........................................................18
Section 10.4 Remedies Cumulative..........................................................18
Section 10.5 Successors and Assigns.......................................................19
Section 10.6 No Third Party Beneficiaries.................................................19
Section 10.7 Further Assurances...........................................................19
Section 10.8 Notices......................................................................19
Section 10.9 Governing Law................................................................20
Section 10.10 Severability.................................................................20
Section 10.11 Independent Contractors......................................................20
Section 10.12 Counterparts.................................................................20
Section 10.13 Construction.................................................................21
{/Table}
Schedules
Schedule I ACC Markets
Schedule II Comparable Markets
Schedule 2.1 Construction Plan
Schedule 2.3 Network Performance Standards
Schedule 2.4 Core Features and Services
{PAGE}
GSM OPERATING AGREEMENT
GSM Operating Agreement, dated as of July 11, 2003, between AT&T
Wireless Services, Inc., a Delaware corporation ("AWS"), and American Cellular
Corporation, a Delaware corporation ("ACC").
WHEREAS, in order to induce AWS to enter into the GSM Roaming Agreement
(as defined below), ACC has agreed to construct and operate GSM/GPRS Systems (as
defined below) to provide GSM/GPRS roaming services to customers of AWS in the
ACC Markets (as defined below) in accordance with the terms of this Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
ARTICLE 1
DEFINITIONS
"3GPP" means Third Generation Partnership Project.
"ACC" is defined in the preamble.
"ACC GSM Systems" is defined in Section 2.1.
"ACC Indemnified Party" is defined in Section 9.2.
"ACC Markets" means the markets listed on Schedule I.
"ACC TDMA Systems" means TDMA Systems owned by ACC or its affiliates.
An "affiliate" of, or person "affiliated" with, a specified person, is
a person that directly, or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with, the person
specified.
"AWS" is defined in the preamble.
"AWS Indemnified Party" is defined in Section 9.1.
"AWS TDMA Systems" means TDMA Systems owned by AWS or its affiliates.
"AWS GSM Systems" means GSM/GPRS Systems owned by AWS or its
affiliates.
"Change of Control of AWS" means (i) any circumstance, event or
transaction following which any person or group (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act and the regulations thereunder) is
the "beneficial owner" (as such term is used in Rules 13d-3, 13d-5 or 16a-1
under the Exchange Act) of more than 50% of the voting power of the Voting
Securities of AWS (on a fully diluted basis, treating Equity Interests of AWS
issuable upon the conversion, exchange or exercise of convertible or
exchangeable securities, or other rights to acquire Equity Interests, as issued
and outstanding) or otherwise has the power, acting alone, to control AWS; or
(ii) the sale of
{PAGE}
all or substantially all of AWS's stock, business or assets (including through a
merger or otherwise).
*
"Claim" is defined in Section 9.3(a).
"Comparable ACC Market" means, with respect to any AWS market set forth
on Schedule II, the ACC Market(s) set forth opposite such AWS market on Schedule
II.
"Comparable AWS Market" means, with respect to any ACC Market set forth
on Schedule II, the AWS market(s) set forth opposite such ACC Market on Schedule
II.
"Competitive Services" is defined in Section 4.1(a).
"Competitive Systems" is defined in Section 4.2(a).
"Competitive Transactions" is defined in Section 4.2(a).
"control" (including the terms controlling, controlled by and under
common control with) 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 the ownership of voting securities, by contract, or otherwise.
"DCC" means Dobson Communications Corporation.
"Dispute" is defined in paragraph (a) of Article 8.
"Dispute Notice" is defined in paragraph (c) of Article 8.
"EDGE" means Enhanced Data for GSM Evolution, a wireless communications
technology based on GSM and defined by the relevant ETSI or 3GPP standards.
"EDGE Deployment Percentage" means, with respect to any ACC Market or
AWS market listed on Schedule II, a fraction the numerator of which is the
number of cell sites of ACC or AWS, as applicable, in such market in which EDGE
technology has been deployed and the denominator of which is the number of cell
sites of ACC or AWS, as applicable, in such market in which GSM technology has
been (or, in the case of ACC, is then required in accordance with Schedule 2.1
to be) deployed.
"EDGE Deployment Reports" has the meaning set forth in Section 3.1.
"Equity Interests" means capital stock, partnership interests, limited
liability company interests or other ownership or beneficial interests of any
person.
"ETSI" means the European Telecommunications Standardisation Institute.
130518
|
AT&T Wireless
As referenced in this GSM Operating Agreement:
AT&T WIRELESS SERVICES, – TYPE}EX-10.16
{SEQUENCE}4
{FILENAME}d07746exv10w16.txt
{DESCRIPTION}OPERATING AGREEMENT
{TEXT}
{PAGE}
EXHIBIT 10.16
Execution Copy
================================================================================
GSM OPERATING AGREEMENT
between
AT&T WIRELESS SERVICES, INC.
and
AMERICAN CELLULAR CORPORATION
Dated as of July 11, 2003
================================================================================
{PAGE}
TABLE OF CONTENTS
{Table}
{Caption}
Page
----
{S} {C}
ARTICLE 1
_____________
AT&T
Wireless Services, – Performance Standards
Schedule 2.4 Core Features and Services
{PAGE}
GSM OPERATING AGREEMENT
GSM Operating Agreement, dated as of July 11, 2003, between AT&T
Wireless Services, Inc., a Delaware corporation ("AWS"), and American Cellular
Corporation, a Delaware corporation ("ACC").
WHEREAS, in order to induce AWS to enter into
_____________
AT&T Wireless Services – any material respect
and (iii) the Second Amended and Restated Limited Liability Company Agreement,
dated as of February 25, 2000, by and between AT&T Wireless Services JV Co.
("AWS Sub") and Dobson JV Company ("DCC Sub") shall have terminated, and AWS Sub
shall have withdrawn as a member of
_____________
AT&T Wireless Services, – to:
Edwards & Angell, LLP
2800 Financial Plaza
Providence, RI 02903
Attention: David K. Duffell
Fax: (401) 276-6611
19
{PAGE}
If to AWS:
AT&T Wireless Services, Inc.
7277 164th Avenue, NE
Redmond, WA 98052
Attention: Mark D. Bradner
Fax: (425) 580-8405
with a copy to:
Friedman Kaplan
_____________
AT&T WIRELESS SERVICES, – otherwise.
[SIGNATURE PAGE FOLLOWS]
21
{PAGE}
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
AT&T WIRELESS SERVICES, INC.
By /s/ MARK BRADNER
-----------------------------------------
Name:
Title:
AMERICAN CELLULAR CORPORATION
By /s/ EVERETT R. DOBSON
-----------------------------------------
Name:
Title:
{PAGE}
SCHEDULE I
ACC MARKETS
_____________
dt 158605
;
|
Edwards & Angell
As referenced in this GSM Operating Agreement:
Edwards & Angell, – to approve any counsel selected by the Indemnifying Party
(Friedman Kaplan Seiler & Adelman LLP and Edwards & Angell, LLP being deemed
acceptable) and to approve the terms of any proposed settlement (unless
Edwards & Angell, – Oklahoma City, OK 73134
Attention: General Counsel
Fax: (405) 529-8765
with a copy to:
Edwards & Angell, LLP
2800 Financial Plaza
Providence, RI 02903
Attention: David K. Duffell
Fax: (401) 276-
dt 35877
|
Preview
Full Doc
| 2003 |
GSM Operating Agreement
GSM Operating Agreement (69K)
Doc #130524: Click preview link for longer preview.
================================================================================
GSM OPERATING AGREEMENT
between
AT&T WIRELESS SERVICES, INC.
and
AMERICAN CELLULAR CORPORATION
Dated as of July 11, 2003
================================================================================
{PAGE}
TABLE OF CONTENTS
{Table}
{Caption}
Page
----
{S} {C}
ARTICLE 1 DEFINITIONS....................................................................................1
ARTICLE 2 GSM SYSTEMS....................................................................................5
Section 2.1 Construction..................................................................5
Section 2.2 Interoperability..............................................................6
Section 2.3 Network Performance Standards.................................................6
Section 2.4 Core Features and Services....................................................6
ARTICLE 3 EDGE AND NEW TECHNOLOGIES......................................................................7
Section 3.1 EDGE..........................................................................7
Section 3.2 New Technologies..............................................................7
ARTICLE 4 LIMITED EXCLUSIVITY............................................................................7
Section 4.1 Limited Exclusivity...........................................................7
Section 4.2 Competitive Transactions......................................................8
Section 4.3 Limitations on Relief.........................................................9
ARTICLE 5 ROAMING PREFERENCE............................................................................10
Section 5.1 Roaming Preference...........................................................10
Section 5.2 *
ARTICLE 6 OTHER AGREEMENTS..............................................................................10
Section 6.1 Further Assurances...........................................................10
Section 6.2 Reporting Obligations........................................................10
Section 6.3 Test Procedures..............................................................11
Section 6.4 Funding......................................................................11
Section 6.5 Compliance with Law..........................................................11
Section 6.6 Confidentiality..............................................................11
Section 6.7 Force Majeure................................................................12
ARTICLE 7 TERM AND TERMINATION..........................................................................13
Section 7.1 Term.........................................................................13
Section 7.2 Automatic Termination........................................................13
Section 7.3 Termination by AWS...........................................................13
Section 7.4 Termination by ACC...........................................................14
Section 7.5 Effect of Termination........................................................14
ARTICLE 8 DISPUTE RESOLUTION............................................................................14
{/Table}
----------
* Confidential information has been omitted and filed separately with the
Securities and Exchange Commission
{PAGE}
{Table}
{S} {C}
ARTICLE 9 INDEMNIFICATION...............................................................................16
Section 9.1 Indemnification by ACC.......................................................16
Section 9.2 Indemnification by AWS.......................................................16
Section 9.3 Procedures...................................................................17
ARTICLE 10 MISCELLANEOUS................................................................................18
Section 10.1 Entire Agreement.............................................................18
Section 10.2 Amendment; Waiver............................................................18
Section 10.3 Specific Performance.........................................................18
Section 10.4 Remedies Cumulative..........................................................18
Section 10.5 Successors and Assigns.......................................................19
Section 10.6 No Third Party Beneficiaries.................................................19
Section 10.7 Further Assurances...........................................................19
Section 10.8 Notices......................................................................19
Section 10.9 Governing Law................................................................20
Section 10.10 Severability.................................................................20
Section 10.11 Independent Contractors......................................................20
Section 10.12 Counterparts.................................................................20
Section 10.13 Construction.................................................................21
{/Table}
Schedules
Schedule I ACC Markets
Schedule II Comparable Markets
Schedule 2.1 Construction Plan
Schedule 2.3 Network Performance Standards
Schedule 2.4 Core Features and Services
{PAGE}
GSM OPERATING AGREEMENT
GSM Operating Agreement, dated as of July 11, 2003, between AT&T
Wireless Services, Inc., a Delaware corporation ("AWS"), and American Cellular
Corporation, a Delaware corporation ("ACC").
WHEREAS, in order to induce AWS to enter into the GSM Roaming Agreement
(as defined below), ACC has agreed to construct and operate GSM/GPRS Systems (as
defined below) to provide GSM/GPRS roaming services to customers of AWS in the
ACC Markets (as defined below) in accordance with the terms of this Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
ARTICLE 1
DEFINITIONS
"3GPP" means Third Generation Partnership Project.
"ACC" is defined in the preamble.
"ACC GSM Systems" is defined in Section 2.1.
"ACC Indemnified Party" is defined in Section 9.2.
"ACC Markets" means the markets listed on Schedule I.
"ACC TDMA Systems" means TDMA Systems owned by ACC or its affiliates.
An "affiliate" of, or person "affiliated" with, a specified person, is
a person that directly, or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with, the person
specified.
"AWS" is defined in the preamble.
"AWS Indemnified Party" is defined in Section 9.1.
"AWS TDMA Systems" means TDMA Systems owned by AWS or its affiliates.
"AWS GSM Systems" means GSM/GPRS Systems owned by AWS or its
affiliates.
"Change of Control of AWS" means (i) any circumstance, event or
transaction following which any person or group (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act and the regulations thereunder) is
the "beneficial owner" (as such term is used in Rules 13d-3, 13d-5 or 16a-1
under the Exchange Act) of more than 50% of the voting power of the Voting
Securities of AWS (on a fully diluted basis, treating Equity Interests of AWS
issuable upon the conversion, exchange or exercise of convertible or
exchangeable securities, or other rights to acquire Equity Interests, as issued
and outstanding) or otherwise has the power, acting alone, to control AWS; or
(ii) the sale of
{PAGE}
all or substantially all of AWS's stock, business or assets (including through a
merger or otherwise).
*
"Claim" is defined in Section 9.3(a).
"Comparable ACC Market" means, with respect to any AWS market set forth
on Schedule II, the ACC Market(s) set forth opposite such AWS market on Schedule
II.
"Comparable AWS Market" means, with respect to any ACC Market set forth
on Schedule II, the AWS market(s) set forth opposite such ACC Market on Schedule
II.
"Competitive Services" is defined in Section 4.1(a).
"Competitive Systems" is defined in Section 4.2(a).
"Competitive Transactions" is defined in Section 4.2(a).
"control" (including the terms controlling, controlled by and under
common control with) 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 the ownership of voting securities, by contract, or otherwise.
"DCC" means Dobson Communications Corporation.
"Dispute" is defined in paragraph (a) of Article 8.
"Dispute Notice" is defined in paragraph (c) of Article 8.
"EDGE" means Enhanced Data for GSM Evolution, a wireless communications
technology based on GSM and defined by the relevant ETSI or 3GPP standards.
"EDGE Deployment Percentage" means, with respect to any ACC Market or
AWS market listed on Schedule II, a fraction the numerator of which is the
number of cell sites of ACC or AWS, as applicable, in such market in which EDGE
technology has been deployed and the denominator of which is the number of cell
sites of ACC or AWS, as applicable, in such market in which GSM technology has
been (or, in the case of ACC, is then required in accordance with Schedule 2.1
to be) deployed.
"EDGE Deployment Reports" has the meaning set forth in Section 3.1.
"Equity Interests" means capital stock, partnership interests, limited
liability company interests or other ownership or beneficial interests of any
person.
"ETSI" means the European Telecommunications Standardisation Institute.
130524
|
AT&T Wireless
As referenced in this GSM Operating Agreement:
AT&T WIRELESS SERVICES, – SEQUENCE}7
{FILENAME}d07701exv10w31.txt
{DESCRIPTION}GSM/GPRS OPERATING AGREEMENT - AMERICAN CELLULAR
{TEXT}
{PAGE}
EXHIBIT 10.31
Execution Copy
================================================================================
GSM OPERATING AGREEMENT
between
AT&T WIRELESS SERVICES, INC.
and
AMERICAN CELLULAR CORPORATION
Dated as of July 11, 2003
================================================================================
{PAGE}
TABLE OF CONTENTS
{Table}
{Caption}
Page
----
{S} {C}
ARTICLE 1
_____________
AT&T
Wireless Services, – Performance Standards
Schedule 2.4 Core Features and Services
{PAGE}
GSM OPERATING AGREEMENT
GSM Operating Agreement, dated as of July 11, 2003, between AT&T
Wireless Services, Inc., a Delaware corporation ("AWS"), and American Cellular
Corporation, a Delaware corporation ("ACC").
WHEREAS, in order to induce AWS to enter into
_____________
AT&T Wireless Services – any material respect
and (iii) the Second Amended and Restated Limited Liability Company Agreement,
dated as of February 25, 2000, by and between AT&T Wireless Services JV Co.
("AWS Sub") and Dobson JV Company ("DCC Sub") shall have terminated, and AWS Sub
shall have withdrawn as a member of
_____________
AT&T Wireless Services, – to:
Edwards & Angell, LLP
2800 Financial Plaza
Providence, RI 02903
Attention: David K. Duffell
Fax: (401) 276-6611
19
{PAGE}
If to AWS:
AT&T Wireless Services, Inc.
7277 164th Avenue, NE
Redmond, WA 98052
Attention: Mark D. Bradner
Fax: (425) 580-8405
with a copy to:
Friedman Kaplan
_____________
AT&T WIRELESS SERVICES, – otherwise.
[SIGNATURE PAGE FOLLOWS]
21
{PAGE}
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
AT&T WIRELESS SERVICES, INC.
By /s/ MARK BRADNER
-----------------------------------------
Name:
Title:
AMERICAN CELLULAR CORPORATION
By /s/ EVERETT R. DOBSON
-----------------------------------------
Name:
Title:
{PAGE}
SCHEDULE I
ACC MARKETS
_____________
dt 158608
;
|
Edwards & Angell
As referenced in this GSM Operating Agreement:
Edwards & Angell, – to approve any counsel selected by the Indemnifying Party
(Friedman Kaplan Seiler & Adelman LLP and Edwards & Angell, LLP being deemed
acceptable) and to approve the terms of any proposed settlement (unless
Edwards & Angell, – Oklahoma City, OK 73134
Attention: General Counsel
Fax: (405) 529-8765
with a copy to:
Edwards & Angell, LLP
2800 Financial Plaza
Providence, RI 02903
Attention: David K. Duffell
Fax: (401) 276-
dt 35879
|
Preview
Full Doc
| 2003 |
Billing and Collection Services Operating Agreement
Billing and Collection Services Operating Agreement (51K)
Doc #131751: Click preview link for longer preview.
BILLING AND COLLECTION SERVICES
OPERATING AGREEMENT
This Billing and Collection Services Operating Agreement ("Agreement"),
dated as of February 4, 2002 is between Cincinnati Bell Telephone Company
("CBT") and CBD Media, Inc. ("Purchaser"), a Delaware corporation.
WHEREAS, Broadwing Inc. ("Parent"), parent of CBT, Cincinnati Bell
Directory Inc., a wholly owned subsidiary of Parent, and Purchaser have entered
into the Asset Purchase Agreement, dated as of the date hereof (the "Asset
Purchase Agreement"), pursuant to which Purchaser has agreed to purchase the
assets used by Parent and CBT to operate the Business (as defined in the Asset
Purchase Agreement), subject to the terms and conditions contained in the Asset
Purchase Agreement; and
WHEREAS, CBT is willing to provide to Purchaser, under the "Cincinnati
Bell" brand, certain services in connection with the printed and electronic
directories published by Purchaser, and any other mutually agreeable products or
services sold by Purchaser; and
WHEREAS, Purchaser desires to purchase such services.
NOW, THEREFORE, in consideration of the terms and conditions contained
herein, CBT and Purchaser hereby covenant and mutually agree as follows:
Section 1. Term and Termination.
1.1 This Agreement will be effective on the Closing Date (as defined in the
Asset Purchase Agreement) and, unless terminated earlier as provided
herein, will remain in effect for an initial term of ten (10) years.
Thereafter, this Agreement will renew automatically for an additional ten
(10) year period on the same terms and conditions in effect on the last day
of the then-current term, unless Purchaser gives written notice of
termination to CBT at least 60 days prior to the end of the initial term.
1.2 Notwithstanding the foregoing, either party may terminate this Agreement if
the other party is in material breach of this Agreement and such breach
remains uncured for 60 days after written notice of such breach has been
given to the breaching party.
1.3 Notwithstanding anything in this Agreement to the contrary, this Agreement
shall automatically terminate, and the obligations of the parties shall
immediately cease, upon the termination of the Asset Purchase Agreement in
accordance with Section 7.01 thereof.
Section 2. Services Provided and Representations Made By CBT.
2.1 The services to be provided by CBT and received by Purchaser pursuant to
this Agreement are related to the billing of, and collection of fees from,
Purchaser's customers in the conduct of the Business ("Customer(s)"), as
more fully set forth in Appendix A, to which additions may be made by
mutual agreement of the parties from time to time as new billing and
collection related services are developed or selected by Purchaser
(collectively, the "Services"). During the term of this Agreement
(including the renewal term), CBT agrees that it shall not provide services
similar to
1
{PAGE}
the Services to any competitor of Purchaser.
2.2 In addition to the foregoing, CBT shall furnish to Purchaser, in a format
mutually agreeable to the parties, billing name and address information for
CBT's directory customers.
2.3 All Services shall be provided by CBT in accordance with the Service Level
requirements ("SLA") set forth on Appendix B attached hereto and made a
part hereof. In the event CBT fails to meet any SLA, Purchaser shall be
entitled to a credit in the amount set forth on Appendix B.
2.4 In the performance of all collection Services, CBT acknowledges and agrees
that it acting in a fiduciary capacity for Purchaser, and CBT shall have no
right or authority to compromise, settle or in any other way limit
Purchaser's claim or causes of action with respect to any Customer provided
Purchaser is current with all charges from CBT.
2.5 All amounts collected hereunder for Purchaser (including all late fees
associated with a Customer) shall be handled in accordance with the
Settlement Procedures set forth in Appendix E, and shall be transferred via
ACH transaction on a daily basis one day in arrears to a bank account
designated by Purchaser (the "Account"). CBT shall have no authority to pay
or release any funds to any person or entity other than Purchaser.
2.6 CBT shall not, and shall not allow any person or entity to, create any
lien, encumbrance, or security interest in or on the Account.
2.7 CBT will provide Purchaser with regular monthly reports, to be delivered no
later than the tenth (10/th/) business day after the end of the month, in a
format reasonably requested by Purchaser, containing all information
Purchaser may reasonably require in order to track the performance of the
Services, including but not limited to SLA statistics and collections.
2.8 CBT warrants that it shall perform the Services in compliance with all
applicable local, state and federal laws, rules and regulations, including
without limitation, policies and laws related to spamming, privacy, and
consumer protection.
2.9 CBT represents that it has the requisite corporate authority to enter into
this Agreement and to perform it obligations hereunder, and that there are
no outstanding rights, agreements, grants, encumbrances, obligations or
restrictions that would prevent CBT from performing its obligations under
the terms of this Agreement.
2.10 CBT represents that the Services, and any materials used by CBT in
fulfilling its obligations under this Agreement,: (i) do not now and will
not infringe upon or violate any copyright, patent, trade secret, contract
right or other third party right, (ii) do not now and will not violate any
federal, state, or local law or regulation.
2.11 CBT warrants that it will perform the Services in a professional,
competent, and timely manner by appropriately qualified personnel in
sufficient quantity and in accordance with generally accepted industry
standards.
2
{PAGE}
2.12 CBT warrants that it shall not, directly or indirectly, by or for itself,
as the agent of another, or through others as an agent in any way solicit
or induce, or attempt to solicit or induce, any employee of Purchaser to
leave Purchaser's employ or otherwise interfere with such employment
relationship during the term of this Agreement and for a period of one (1)
year following the termination or expiration of this Agreement.
Section 3. Customer Information
3.1 For purposes hereof, "Purchaser Customer Information" means all personally
identifiable information of a Customer, including, but not limited to,
name, address, telephone number, e-mail address, credit card information,
gender, products or services requested or listed, and transaction history,
together with all aggregated or generated data, compilations, summaries,
and other similar collections of such information for the purpose of
Directory Services.
3.2 The parties agree that Purchaser exclusively and solely owns all Purchaser
Customer Information, and all intellectual property rights relating thereto
shall be solely and exclusively held by Purchaser or any nominee thereof.
At the request of Purchaser, CBT shall deliver to Purchaser, in mutually
131751
|
Latham & Watkins
As referenced in this Billing and Collection Services Operating Agreement:
Latham & Watkins
– Purchaser: CBD Media, Inc.
_____________________
_____________________
Attn: _______________
With a Copy to: Scott Haber, Esq.
Latham & Watkins
505 Montgomery Street, Suite 1900
San Francisco, CA 94111-2562
9.7 No Third-
dt 31139
;
Cincinnati Bell Telephone Company;
| CBD Finance Inc
|
Preview
Full Doc
| 2003 |
Outsourcing and Operating Agreement [Amended and Restated No. 4]
Outsourcing and Operating Agreement [Amended and Restated No. 4] (296K)
Doc #190708: Click preview link for longer preview.
FOURTH AMENDED AND RESTATED
OUTSOURCING AND OPERATING AGREEMENT
This Fourth Amended and Restated Outsourcing and Operating Agreement (Agreement) effective as of August 11, 2003 (the Effective Date), by and among Neoforma, Inc., (formerly named Neoforma.com, Inc.) a Delaware corporation with offices at 3061 Zanker Road, San Jose, California 95134 (Neoforma), Novation, LLC, a Delaware limited liability company with offices at 125 East John Carpenter Freeway, Irving, Texas 75062 (Novation), Healthcare Purchasing Partners International, LLC, a Delaware limited liability company with offices at 125 East John Carpenter Freeway, Irving, Texas 75062 (HPPI), VHA Inc., a Delaware corporation with offices at 220 East Las Colinas Boulevard, Irving, Texas 75039-5500 (VHA), and University Health System Consortium, an Illinois corporation with offices at 2001 Spring Road, Suite 700, Oak Brook, Illinois 60523 (UHC).
RECITALS
WHEREAS, Neoforma is a provider of Internet (as defined in Section 1) e-commerce services to the healthcare industry facilitating the sale, rental or lease of new and used equipment, products, supplies, services information and other content, and provides information regarding various healthcare facilities and equipment through its online offerings and programs;
WHEREAS, VHA and UHC are organizations whose patrons are hospitals and healthcare providers, who view e-commerce as an essential part of their cooperative purchasing programs on behalf of their patrons for the future and who desire to more fully develop the services they render to their patrons through this Agreement;
WHEREAS, VHA and UHC together own all the ownership interests in Novation and HPPI;
WHEREAS, Novation is a contracting agent that develops and delivers supply chain management agreements, programs and services on behalf of VHA and UHC and their patrons;
WHEREAS, HPPI is a GPO that serves healthcare organizations that are not members of VHA and UHC and other GPOs and which develops and delivers supply-chain management programs and services to such healthcare organizations;
WHEREAS, the Parties wish to establish a long-term, global relationship to enable the Parties to achieve increased efficiency and cost savings through Internet-based technology and pursuant to which (i) Neoforma will develop and manage the Novation Marketplace and HPPI Marketplace (as defined in Section 1), e-commerce web sites for the benefit of the members of VHA and UHC, the associated healthcare organizations of HPPI and for the benefit of other users unaffiliated with VHA, UHC or HPPI, (ii) Novation will seek to secure the participation of healthcare equipment manufacturers and service suppliers in the Novation Marketplace and cooperate with Neoforma in its efforts to contract with suppliers for additional services and functionality, and (iii) VHA and UHC will provide marketing support for the Novation
1
Marketplace and HPPI Marketplace, guarantee Novations obligations to the extent provided under this Agreement and enter into the exclusivity provisions hereunder;
WHEREAS, the Parties have previously entered into an Outsourcing and Operating Agreement (the Original Outsourcing and Operating Agreement), dated as of March 30, 2000 (the Original Effective Date), and have also previously entered into an amended and restated Outsourcing and Operating Agreement, dated as of May 24, 2000 (the First Amended and Restated Outsourcing and Operating Agreement), a second amended and restated Outsourcing and Operating Agreement, dated as of January 1, 2001 (the Second Amended and Restated Outsourcing Agreement), and a first amendment to the Second Amended and Restated Outsourcing Agreement, dated as of July 1, 2001 (the First Amendment), a third amended and restated Outsourcing and Operating Agreement, dated as of September 30, 2002 (the Third Amended and Restated Outsourcing Agreement), and each Party desires to amend and restate the Third Amended and Restated Outsourcing and Operating as set forth herein; and
WHEREAS, in consideration for the services initially agreed to be provided by VHA and UHC pursuant to the Original Outsourcing and Operating Agreement and the First Amended and Restated Outsourcing and Operating Agreement, Neoforma issued to VHA and UHC shares of, and warrants to purchase, common stock of Neoforma.
NOW, THEREFORE, for good and valuable consideration, the Parties agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the respective meanings set forth below. Other capitalized terms shall have the meanings set forth elsewhere in this Agreement.
Adjusted Gross Transaction Value(s) means, with regard to a confirmed purchase, rental or lease on the Novation Marketplace or HPPI Marketplace, the * which are related to the Product purchased, rented or leased.
Affiliate(s) means, with respect to a specified person, any other person that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such specified person. Neoforma, on the one hand, and Novation, VHA and/or UHC, on the other hand, shall not be Affiliates.
Aggregated Member Data means all or any of an aggregate of the Information relating to any two or more Members.
API(s) means language and messaging formats, in human and computer readable form, that define how programs interact with an operating system, a database, with functions in other programs, with communication systems, or with hardware drivers.
190708
|
Neoforma
As referenced in this Outsourcing and Operating Agreement [Amended and Restated No. 4]:
NEOFORMA, INC. – 1
FOURTH AMENDED AND RESTATED OUTSOURCING AND OPERATING AGREEMENT*
dated as of August 13, 2003
among
NOVATION, LLC,
VHA INC.,
UNIVERSITY HEALTH SYSTEM CONSORTIUM,
HEALTHCARE PURCHASING PARTNERS INTERNATIONAL, LLC,
and
NEOFORMA, INC.
*
Confidential treatment requested: Certain portions of this agreement have been omitted pursuant to a request for confidential treatment and, where applicable, have been marked with an asterisk to denote
_____________
Neoforma, Inc. – FOURTH AMENDED AND RESTATED
OUTSOURCING AND OPERATING AGREEMENT
This Fourth Amended and Restated Outsourcing and Operating Agreement (Agreement) effective as of August 11, 2003 (the Effective Date), by and among Neoforma, Inc. , (formerly named Neoforma.com, Inc.) a Delaware corporation with offices at 3061 Zanker Road, San Jose, California 95134 (Neoforma), Novation, LLC, a Delaware limited liability company with offices at
_____________
Neoforma, Inc. – Attn: General Counsel
With a copy to:
McDermott, Will & Emery
227 West Monroe Street
Chicago, Illinois 60606
Facsimile: (312) 984-7700
Attn: Virginia H. Holden, Esq.
If to Neoforma:
Neoforma, Inc.
3061 Zanker Road
San Jose, California 95134
Facsimile: (408) 468-4000
Attn: General Counsel
With a copy to:
Fenwick & West LLP
Silicon Valley Center
801 California Street
Mountain
_____________
NEOFORMA, INC. – that may be entered, to obtain such intellectual property from the bankruptcy trustee.
55
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.
NEOFORMA, INC.
NOVATION, LLC
By:
/s/ Robert Zollars
By:
/s/ Mark McKenna
Name:
Title:
Date:
Robert J. Zollars
Chairman and CEO
8/12/03
Name:
Title:
Date:
Mark McKenna
President and
_____________
Neoforma, Inc. – regarding proper editorial standard, please contact your Novation marketing communications manager or Rich Reecer, Novation editorial and publications manager at ext. 5076.
EXHIBIT C
CURRENT MARKS USAGE GUIDELINES FOR NEOFORMA
Neoforma, Inc. s Trademark Guidelines
Introduction
Neoforma, Inc. values its intellectual property. Its trademarks and brands are an important asset. Neoforma requires that its trademarks be used properly in all contexts. Please
_____________
dt 1463589
;
Baker Botts
As referenced in this Outsourcing and Operating Agreement [Amended and Restated No. 4]:
Baker Botts – Freeway
Irving, Texas 75062
Facsimile: (972) 581-5778
Attn: General Counsel
With a copy to:
Baker Botts L.L.P.
2001 Ross Avenue
Dallas, Texas 75201-2980
Facsimile: (214) 953-6503
Attn:
dt 29428
;
McDermott Will
As referenced in this Outsourcing and Operating Agreement [Amended and Restated No. 4]:
McDermott, Will – Oak Brook, Illinois 60523
Facsimile: (630) 954-4730
Attn: General Counsel
With a copy to:
McDermott, Will & Emery
227 West Monroe Street
Chicago, Illinois 60606
Facsimile: (312) 984-7700
Attn:
dt 38222
;
|
Skadden
As referenced in this Outsourcing and Operating Agreement [Amended and Restated No. 4]:
Skadden, – Texas 75039-5500
Facsimile: (972) 830-0391
Attn: Chief Financial Officer
With a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue, N.W.
Washington, DC
dt 34323
;
Novation, LLC;
More... |
Preview
Full Doc
| 2002 |
Operating Agreement [Amended and Restated]
Operating Agreement [Amended and Restated] (285K)
Doc #261306: Click preview link for longer preview.
AMENDED AND RESTATED
OPERATING AGREEMENT
OF
919 JV LLC
By and Between
Metropolitan Operating Partnership, L.P.,
Metropolitan 919 Manager LLC
and
New York State Teachers' Retirement System
Dated as of December 21, 2001
{PAGE}
{TABLE}
{CAPTION}
TABLE OF CONTENTS
Page
{S} {C}
ARTICLE I DEFINITIONS...........................................................................2
ARTICLE II FILING; NAME; PLACE OF BUSINESS......................................................20
2.01 Filing.................................................................................20
2.02 Name of LLC............................................................................20
2.03 Place of Business......................................................................20
2.04 Registered Office and Registered Agent.................................................20
ARTICLE III PURPOSES, POWERS AND TERM OF LLC....................................................20
3.01 Purposes...............................................................................20
3.02 Powers.................................................................................20
3.03 Term of LLC............................................................................21
ARTICLE IV APPORTIONMENTS.......................................................................21
4.01 Apportionments.........................................................................21
ARTICLE V CAPITAL...............................................................................24
5.01 Deemed Capital Contributions...........................................................24
5.02 Additional Contributions; Shortfall Loans..............................................24
5.03 Liability of Members...................................................................26
5.04 Return of Capital......................................................................26
ARTICLE VI ALLOCATION OF PROFITS AND LOSSES; DISTRIBUTIONS.......................................26
6.01 Capital Accounts.......................................................................26
6.02 Allocation of Net Income or Net Loss...................................................27
6.03 Special Allocations....................................................................28
6.04 Tax Allocations; Allocation of Income and Loss.........................................28
6.05 Distributions of Net Ordinary Cash Flow and Net Extraordinary Cash Flow................29
6.06 Compliance with the Fractions Rule.....................................................31
6.07 Withholding Taxes......................................................................31
ARTICLE VII MANAGEMENT...........................................................................31
7.01 Managing Member........................................................................31
{PAGE}
7.02 Management Committee...................................................................34
7.03 Major Decisions........................................................................35
7.04 Goods and Services from Affiliates/Enforcement.........................................39
7.05 The Business Plan......................................................................40
7.06 Other Activities of Members............................................................42
7.07 Property Management....................................................................42
7.08 Group Members..........................................................................42
ARTICLE VIII BANK ACCOUNTS; BOOKS AND RECORDS; STATEMENTS; TAXES; FISCAL YEAR...................43
8.01 Books of Account......................................................................43
8.02 Fiscal Year...........................................................................43
8.03 Bank Accounts.........................................................................43
8.04 Financial Statements..................................................................44
8.05 Tax Returns; Tax Matters Partner......................................................44
8.06 Communications........................................................................45
8.07 Partnership...........................................................................45
ARTICLE IX TRANSFERS OF INTERESTS; RIGHT OF FIRST REFUSAL; PLEDGES...............................45
9.01 Restrictions on Transfers of LLC Interests.............................................45
9.02 Right of First Offer...................................................................46
9.03 Conditions Applicable to All Transfers.................................................50
9.04 Admission of Transferee................................................................51
9.05 Pledge of Interest.....................................................................51
9.06 Special Transfer Provisions Applicable to Reckson......................................52
9.07 Compliance with Mortgage Loans.........................................................56
ARTICLE X SALE OF PROPERTY; BUY/SELL ARRANGEMENTS................................................56
10.01 Sale of Property to Third Parties......................................................56
10.02 Buy-Sell Arrangements..................................................................59
10.03 Purchase of Ground Leased Parcel.......................................................63
ARTICLE XI DISSOLUTION AND LIQUIDATION............................................................63
-ii-
{PAGE}
11.01 Events Causing Dissolution............................................................63
11.02 Right to Continue Business of the LLC.................................................63
11.03 Distributions Upon Dissolution........................................................64
ARTICLE XII RECOURSE OBLIGATIONS..................................................................64
12.01 Goldman Recourse Obligations..........................................................64
12.02 Optional Recourse Obligations.........................................................66
12.03 Release and Substitution of Recourse Obligations......................................66
ARTICLE XIII REPRESENTATIONS AND WARRANTIES.......................................................66
13.01 Representations and Warranties........................................................66
ARTICLE XIV MISCELLANEOUS PROVISIONS.............................................................72
14.01 Compliance with LLC Act.............................................................72
14.02 Additional Actions and Documents....................................................72
14.03 Notices.............................................................................72
14.04 Expenses............................................................................75
14.05 Obligations Are Without Recourse....................................................75
14.06 Time of the Essence.................................................................76
14.07 Ownership of LLC Assets.............................................................76
14.08 Status Reports......................................................................76
14.09 Survival............................................................................77
14.10 Waivers.............................................................................77
14.11 Exercise of Rights..................................................................77
14.12 Binding Effect......................................................................77
14.13 Limitation on Benefits of this Agreement............................................77
14.14 Severability........................................................................78
14.15 Amendment Procedure.................................................................78
14.16 Entire Agreement....................................................................78
14.17 Headings............................................................................78
14.18 Governing Law.......................................................................78
14.19 Execution in Counterparts...........................................................78
14.20 Consents and Approvals..............................................................78
14.21 Brokerage...........................................................................78
14.22 Indemnification.....................................................................79
14.23 Business Day Extension..............................................................80
14.24 Consent to Jurisdiction; Choice of Forum............................................80
14.25 No Presumption......................................................................81
14.26 Confidentiality.....................................................................81
14.27 Lender's Rights.....................................................................81
14.28 Lower Tier Actions..................................................................81
14.29 Art Work............................................................................82
14.30 Signage.............................................................................82
- iii -
{PAGE}
ARTICLE XV ARBITRATION...........................................................................82
ARTICLE XVI 919 MEMBER LLC........................................................................83
{/TABLE}
- iv -
{PAGE}
AMENDED AND RESTATED
OPERATING AGREEMENT
OF
919 JV LLC
THIS AMENDED AND RESTATED OPERATING AGREEMENT of 919 JV LLC (the
"LLC") is entered into as of December 21, 2001, between METROPOLITAN OPERATING
PARTNERSHIP, L.P., a Delaware limited partnership having an office c/o Reckson
Associates, 225 Broadhollow Road, Melville, New York 11747 (together with its
permitted successors and assigns, "MOP"), METROPOLITAN 919 MANAGER LLC, a
Delaware limited liability company having an office c/o Reckson Associates,
225 Broadhollow Road, Melville, New York 11747 (together with its permitted
successors and assigns, "Metro919") and NEW YORK STATE TEACHERS' RETIREMENT
SYSTEM, a public pension system created and existing pursuant to Article 11 of
the Education Law of the State of New York and having powers and privileges of
a corporation pursuant to Section 502 thereof, having an address at 10
Corporate Woods Drive, Albany, New York 12211-2395 (together with its
permitted successors and assigns, "NYSTRS"). MOP, Metro919 and NYSTRS shall
hereinafter collectively be referred to as the "Members". All capitalized
terms not defined in the recitals below shall have the meanings ascribed to
them in Article I of this Agreement.
WHEREAS, the LLC was formed pursuant to the filing of a Certificate
of Formation (as the same may be amended from time to time, the "Certificate")
on December 7, 2001 and MOP and Metro919 (collectively, "Original Members")
entered into that certain Limited Liability Company Agreement (the "Original
LLC Agreement") made as of December 17, 2001 to govern the operation,
management and affairs of the LLC and the relationship between the Original
Members. Pursuant to the Original LLC Agreement, the percentage interests of
the Original Members were as follows: MOP-56.9236% and Metro919 - 43.0764%.
WHEREAS, the LLC is the holder of membership interests in the
following entities: (i) Metropolitan 919 3rd Avenue LLC, a Delaware
limited liability company (the "Property Owner") which owns certain fee and
ground leasehold interests (which interests are more particularly described in
the Property Owner LLC Agreement) in the Land and the Building (collectively,
the "Property"); (ii) 919 Third Avenue LLC, a Delaware limited liability
company ("Third Avenue LLC"); and (iii) Metropolitan 919 MM LLC, a Delaware
limited liability company ("MM LLC"; Property Owner, MM LLC and Third Avenue
LLC are collectively, the "Lower Tier Entities"). MM LLC and Third Avenue LLC
own an interest in Property Owner as described in the Property Owner LLC
Agreement.
WHEREAS, as of the date hereof, pursuant to a certain Assignment and
Admission Agreement between MOP and NYSTRS, MOP has assigned to NYSTRS an
Interest in the LLC which has the Initial Percentage Interest and the rights
and obligations set forth herein in exchange for $98,415,860.01.
{PAGE}
WHEREAS, as a result of the foregoing, NYSTRS is being admitted as a
Member of the LLC as of the date hereof with a 49% Percentage Interest.
In order to reflect the foregoing and to reflect the agreement of
the parties to the foregoing and the other matters set forth below, the
parties hereby amend and restate the Original LLC Agreement as follows:
ARTICLE I
DEFINITIONS
Unless otherwise specified, all references herein to Articles or
Sections are to Articles or Sections of this Agreement. Unless the context
otherwise specifies or requires, capitalized terms used herein shall apply
equally to both the singular and the plural forms of such capitalized terms
and shall have the following respective meanings:
2nd Anniversary Date: As defined in Section 10.02(a).
919 Member LLC Agreement: That certain Operating Agreement of 919
Member LLC by and among 919 Third Avenue Associates L.P., 919 Fee Associates
L.P. and Metro919.
2002 Business Plan: As defined in Section 7.05(f).
Adjusted Capital Account: Means, with respect to a Member, the
balance in the Member's Capital Account increased by (i) the Member's share of
"partnership minimum gain" and "partner nonrecourse minimum gain" as defined
in the Regulations under Section 704(b) of the Code and (ii) the amount of any
cash and the fair market value of any property the Member would be required to
contribute to the LLC upon a deemed liquidation of the LLC under Section 6.02,
including pursuant to any deficit restoration obligation as defined in
Regulations Section 1.704-1(b)(2)(ii)(b)(3) and Section 1.704-1(b)(2)(ii)(c).
Affiliate: When used with reference to a specified Person, means any
other Person that (a) directly or indirectly through one or more
intermediaries controls or is controlled by or is under common control with
the specified Person, (b) is a general partner or managing member of (i) the
Person in question, (ii) any general partner or managing member of the Person
in question or (iii) any other Person described in clause (a) above with
respect to the Person in question or (c) owns, is owned by, directly or
indirectly, or is under common ownership with, directly or indirectly, 25% or
more of the equity interests of the specified Person. For purposes of this
definition of "Affiliate" the term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities
or similar ownership interests, by contract or otherwise. Notwithstanding the
foregoing, neither the Reckson Members nor the NYSTRS Members shall be deemed
to be Affiliates of any Applicable Entity.
Affiliate Agreement: As defined in Section 7.04(b).
-2-
{PAGE}
Affiliate Agreement Summary: As defined in Section 7.04(a).
Agreement: This Amended and Restated Operating Agreement, as it may
be further amended or supplemented from time to time.
Annual Report: As defined in Section 8.04(a).
Applicable Entities: The LLC, MM LLC, Third Avenue LLC and the
Property Owner, individually or collectively.
Applicable Interest: As defined in Section 9.02(a)(i).
Applicable Loan Documents: the documents governing each Applicable
Loan.
Applicable Loans: Means, collectively (a) the Goldman Loan
and (b) other indebtedness now or hereafter entered into by any Applicable
Entity which may be (x) unsecured, or (y) secured by (I) a mortgage lien on
the Property (collectively, with the Goldman Loan, the "Mortgage Loans")
and/or (II) the membership interests of one or more Applicable Entities.
Approved Agent: Means, subject to the last four sentences of this
definition, Insignia/ESG, Inc., Cushman & Wakefield, Inc., CB Richard Ellis,
Jones Lang LaSalle, Colliers ABR and Hines Interests Limited Partnership (and
their respective successors) (collectively, the "Initial Agents"). In the
event that less than three of the above Persons shall (i) be in existence at
the time in question, (ii) be managing Class A commercial space in Manhattan
or (iii) cease to be an "Approved Agent" under the penultimate sentence of
this paragraph an "Approved Agent" shall be any of the remaining Initial
Agents, plus the next largest managing agents that are not Competitors such
that the list of Approved Agents shall always consist of at least 3 agents.
The largest managing agents shall be determined by the amount of Class A
office space managed in Manhattan at such time. The parties acknowledge that
one or more of the Initial Agents may currently be a "Competitor".
Notwithstanding the foregoing, so long as 75% or more of the space managed by
an Initial Agent is not contained in Agent-Owned Buildings, each such Initial
Agent shall be deemed to be an Approved Agent. An "Agent-Owned Building" is a
building in which more than 7 1/2% of the direct or indirect ownership
interests are held by an Initial Agent or its Affiliates.
Bank Account: As defined in Section 8.03.
Bankrupt: A Person shall be deemed "Bankrupt" upon, (i) the
entry of a final, nonappealable decree or order for relief of the Person by a
court of competent jurisdiction in any involuntary case involving the Person
under any bankruptcy, insolvency or other similar law now or hereafter in
effect; (ii) the appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator or other similar agent for the Person or for all or
substantially all of the Person's assets or property which appointment is not
discharged within 90 days; (iii) the ordering of the winding up or liquidation
of the Person's affairs (in connection with an insolvency or bankruptcy); (iv)
the filing with respect to the Person of a petition in any such involuntary
bankruptcy case, which petition remains undismissed for a period of 90 days;
(v) the commencement by the Person
-3-
{PAGE}
of a voluntary case under any bankruptcy, insolvency or other similar law now
or hereafter in effect; (vi) the consent by the Person to the entry of an
order for relief in an involuntary case under any such law or to the
appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar agent for the Person or for
all or substantially all of the Person's assets or property; (vii) the making
by the Person of any general assignment for the benefit of creditors; or
(viii) the admission in writing by the Person of its inability to pay its
debts as such debts become due.
Binding Commitment Notice: As defined in Section 9.02(a)(i)(B).
Binding Commitment Period: As defined in Section 9.02(a)(i)(B).
Binding Property Notice: As defined in Section 10.01(a).
Book Value: Means, with respect to any LLC Asset, the asset's
adjusted basis for federal income tax purposes, except that, in accordance
with the rules set forth in Regulations Section 1.704-1(b)(iv):
(a) The initial Book Value of the assets of the LLC as of the
date of their contribution or deemed contribution shall be their respective
gross fair market values at such time as reasonably determined by the Managing
Member;
(b) The Book Value of any asset distributed or deemed
distributed by the LLC to any Member shall be adjusted immediately prior to
such distribution to equal its gross fair market value at such time as
reasonably determined by the Managing Member;
(c) The Book Values of all LLC assets may be adjusted in the
discretion of the Managing Member to equal their respective gross fair market
values, as reasonably determined by the Managing Member, as of the following
261306
|
C&W
As referenced in this Operating Agreement [Amended and Restated]:
Cushman & Wakefield, Inc – the "Mortgage Loans")
and/or (II) the membership interests of one or more Applicable Entities.
Approved Agent: Means, subject to the last four sentences of this
definition, Insignia/ESG, Inc., Cushman & Wakefield, Inc ., CB Richard Ellis,
Jones Lang LaSalle, Colliers ABR and Hines Interests Limited Partnership (and
their respective successors) (collectively, the "Initial Agents"). In the
event that less than three of
_____________
dt 1360771
;
Reckson
As referenced in this Operating Agreement [Amended and Restated]:
Reckson Associates Realty Corp – if
Reckson Associates becomes a subsidiary of another Person as a result of such
Transaction, the Ultimate Parent of Reckson Associates.
Reckson Associates: Reckson Associates Realty Corp . or, subject
to the provisions of Section 9.06(a)(ii), any successor thereto by merger or
acquisition of all or substantially
_____________
dt 143910
;
|
Fried Frank
As referenced in this Operating Agreement [Amended and Restated]:
Fried, Frank – the Americas
Suite 901
New York, New York 10019
Attention: Philip M. Waterman III
Telephone: (212) 715-6522
Telecopier: (212) 715-6535
and
Fried, Frank , Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10038
Attention: Joshua Mermelstein, Esq.
Telephone: (212) 859-8137
Telecopier: (212)
_____________
Fried, Frank – the Americas
Suite 901
New York, New York 10019
Attention: Philip M. Waterman III
Telephone: (212) 715-6522
Telecopier: (212) 715-6535
and
Fried, Frank , Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10038
Attention: Joshua Mermelstein, Esq.
Telephone: (212) 859-8137
Telecopier: (212)
_____________
dt 138446
|
Preview
Full Doc
| 2000 |
Operating Agreement
Operating Agreement (262K)
Doc #261342: Click preview link for longer preview.
OPERATING AGREEMENT
OF
RT TRI-STATE LLC
THIS OPERATING AGREEMENT is entered into as of September 28,
2000, between Reckson Tri-State Member LLC, a Delaware limited liability
company (together with its permitted successors and assigns, "Reckson") and
TIAA Tri-State LLC, a Delaware limited liability company (together with its
permitted successors and assigns, "TIAA LLC"). Reckson and TIAA LLC shall
hereinafter collectively be referred to as the . . .
261342
|
FrontLine
As referenced in this Operating Agreement:
Frontline
Capital Group – LLC or the Property Owners to enter into agreements or other
arrangements for the furnishing to the LLC of goods or services with Frontline
Capital Group LLC ("Frontline") or any entity in which Frontline has a direct
or indirect investment or any Person who is an Affiliate of the
_____________
dt 236512
;
Reckson
As referenced in this Operating Agreement:
Reckson Associates Realty Corp – this Agreement.
Reckson Amount: As defined in Section 9.06(a)(ii)(A).
Reckson Artwork: As defined in Section 13.32.
Reckson Associates: Reckson Associates Realty Corp . or,
subject to the provisions of Section 9.06(a)(ii), any successor thereto by
merger or acquisition of all or substantially
_____________
Reckson Associates Realty Corp – of such
transfer.
2.03 Place of Business
The location of the principal place of business of the LLC
shall be c/o Reckson Associates Realty Corp ., 225 Broadhollow Road, Melville,
New York 11747. The principal place of business of the LLC shall be changed to
such other place
_____________
Reckson Associates Realty Corp – transmission
(with a copy simultaneously delivered by one of the other permitted methods of
delivery), addressed as follows:
(a) To Reckson:
c/o Reckson Associates Realty Corp .
225 Broadhollow Road
Melville, New York 11747
Attention: Jason Barnett, Esq.
with a copy to:
Fried, Frank, Harris, Shriver & Jacobson
One New
_____________
Reckson Associates Realty Corp – their behalf as of the day and year
first hereinabove set forth.
RECKSON TRI-STATE MEMBER LLC
Reckson Operating Partnership, L.P.
By: Reckson Associates Realty Corp .,
its general partner
By:__________________________
Name:
Title:
Tax Identification Number:
11-3233647
TIAA TRI-STATE LLC
By: Teachers Insurance And Annuity
Association,
_____________
dt 143942
;
|
Debevoise
As referenced in this Operating Agreement:
Debevoise & Plimpton – shall occur if the applicable Change in Control would, in the
opinion of outside counsel to TIAA LLC (which outside counsel shall be
Debevoise & Plimpton (or another firm reasonably acceptable to Reckson)), (i)
cause the LLC to be deemed to hold "plan assets" within the meaning of
_____________
dt 136086
|
Preview
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| 2002 |
Operating Agreement
Operating Agreement (152K)
Doc #262074: Click preview link for longer preview.
OPERATING AGREEMENT
OF
MONTAUK BATTERY REALTY, LLC
{PAGE}
GLOSSARY OF TERMS
"AAA" shall have the meaning ascribed to it in Section 8.3(e).
"ACQUIRED ENTITY" shall have the meaning ascribed to it in
Section 8.3(h) hereof.
"AFFILIATE" shall have the meaning ascribed to it in Section
6.3(c) hereof.
"AGREED VALUE" shall have the meaning ascribed to it in Section
15.2 hereof.
"APPRAISED VALUE" shall have the meaning ascribed to it in
Section 8.3(e) hereof.
"APPROVALS" shall have the meaning ascribed to it in the
Recitals.
"B&H" shall have the meaning ascribed to it in the Recitals.
"BA" shall have the meaning ascribed to it in the Recitals.
"BANKRUPT MEMBER" shall have the meaning ascribed to it in
Section 15.4 hereof.
"BOARD" shall have the meaning ascribed to it in the Recitals.
"BODIES" shall have the meaning ascribed to it in Section 19.8
hereof.
"BUDGETS" shall have the meaning ascribed to it in Section
8.3(a) hereof.
"BURR III" shall have the meaning ascribed to it in the
Recitals.
"CAPITAL PERCENTAGE INTEREST" shall have the meaning ascribed
to it in Section 6.1 hereof.
"CERTIFICATE" shall have the meaning ascribed to it in Section
15.2 hereof.
"CHANGE IN CONTROL" shall have the meaning ascribed to it in
Section 13.1 hereof.
"CHIEF EXECUTIVE OFFICER" shall have the meaning ascribed to it
in the Recitals.
"CODE" shall have the meaning ascribed to it in Section 6.2
hereof.
"COMPANY" shall have the meaning ascribed to it in the
Recitals.
i
{PAGE}
"COMPANY VALUATION" shall have the meaning ascribed to it in
Section 15.2 hereof.
"CONVERSION RIGHT" shall have the meaning ascribed to it in
Section 14.6 hereof.
"COVENANT PERIOD" shall have the meaning ascribed to it in
Section 18 hereof.
"CUSANO" shall have the meaning ascribed to it in the
Recitals.
"DECEASED SHAREHOLDER" shall have the meaning ascribed to it
in Section 15.1 hereof.
"DISPOSITION" shall have the meaning ascribed to it in Section
13.1 hereof.
"DIVISION" shall have the meaning ascribed to it in Section
8.2 hereof.
"DTHY" shall have the meaning ascribed to it in the preface.
"ERISA" shall have the meaning ascribed to it in Section 19.14
hereof.
"EXERCISE NOTICE" shall have the meaning ascribed to it in
Section 14.2 hereof.
"FINANCIAL STATEMENTS" shall have the meaning ascribed to it
in Section 19.10 hereof.
"FRANCHISE NOTE" shall have the meaning ascribed to it in
Section 13.1 hereof.
"HAMPTONS" shall have the meaning ascribed to it in the
Recitals.
"HERMAN" shall have the meaning ascribed to it in the Preface.
"HERMAN EMPLOYMENT AGREEMENT" shall have the meaning ascribed
to it in Section 8.2 hereof.
"HERMAN INSURANCE" shall have the meaning ascribed to it in
Section 11 hereof.
"JUSSAM" shall have the meaning ascribed to it in the
Recitals.
"LAMPEN" shall have the meaning ascribed to it in Section 8.1
hereof.
ii
{PAGE}
"LIEN" shall have the meaning ascribed to it in Section 13.3
hereof.
"LLCL" shall have the meaning ascribed to it in the Recitals.
"LOAN AGREEMENT" shall have the meaning ascribed to it in
Section 6.3(e) hereof.
"LORBER" shall have the meaning ascribed to it in Section 8.1
hereof.
"MANAGER" shall have the meaning ascribed to it in the
Recitals.
"MATERIAL/SERVICE AGREEMENTS" shall have the meaning ascribed
to it in Section 19.17(a) hereof.
"MEMBER(S)" shall have the meaning ascribed to it in the
preface.
"MEMBER LOAN(S)" shall have the meaning ascribed to it in
Section 7.1 hereof.
"NAME CHANGE" shall have the meaning ascribed to it in Section
13.1 hereof.
"NEW VALLEY MORTGAGE" shall have the meaning ascribed to it in
the Preface.
"NEW VALLEY MORTGAGE UNRETURNED INITIAL CAPITAL CONTRIBUTIONS"
shall have the meaning ascribed to it in Section 6.4 hereof.
"NON-PURCHASING MEMBER" shall have the meaning ascribed to it
in Section 14.2 hereof.
"NOTICE OF INTENT TO SELL" shall have the meaning ascribed to
it in Section 14.1 hereof.
"NV" shall have the meaning ascribed to it in the preface.
"NV UNRETURNED INITIAL CAPITAL CONTRIBUTIONS" shall have the
meaning ascribed to it in Section 6.4 hereof.
"OFFERED INTEREST" shall have the meaning ascribed to it in
Section 14.1 hereof.
"OFFERED SHARES" shall have the meaning ascribed to it in
Section 14.1 hereof.
iii
{PAGE}
"OFFEROR" shall have the meaning ascribed to it in Section
14.1 hereof.
"PARENT" shall have the meaning ascribed to it in Section 13.1
hereof.
"PARTNERSHIP" shall have the meaning ascribed to it in the
Recitals.
"PE" shall have the meaning ascribed to it in the Recitals.
"PERMITS" shall have the meaning ascribed to it in Section
19.8 hereof.
"PERSON" shall have the meaning ascribed to it in Section 13.4
hereof.
"PREA" shall have the meaning ascribed to it in Section 8.4(d)
hereof.
"PREFERRED" shall have the meaning ascribed to it in the
Recitals.
"PREFSA" shall have the meaning ascribed do it in the Preface.
"PREFSA RESTRICTED PERIOD" shall have the meaning ascribed to
it in Section 18 hereof.
"PREFSA UNRETURNED CAPITAL CONTRIBUTIONS" shall have the
meaning ascribed to it in Section 6.4 hereof.
"PROFITS OR LOSSES" shall have the meaning ascribed to it in
Section 6.2 hereof.
"PURCHASING MEMBER" shall have the meaning ascribed to it in
Section 14.6 hereof.
"RANGELEY" shall have the meaning ascribed to it in the
Recitals.
"REMAINING MEMBERS" shall have the meaning ascribed to it in
Section 14.1 hereof.
"RESERVES" shall have the meaning ascribed to it in Section
6.8 hereof.
"RESTRICTED INDIVIDUAL" shall have the meaning ascribed to it
in Section 18 hereof.
iv
{PAGE}
"RESTRICTIVE PERIOD" shall have the meaning ascribed to it in
Section 18 hereof.
"SALE" shall have the meaning ascribed to it in Section 8.4(c)
hereof.
"SCHEDULED CONTRACTS" shall have the meaning ascribed to it in
Section 19.17(c).
"SECOND EXERCISE NOTICE" shall have the meaning ascribed to it
in Section 14.2 hereof.
"SELLING MEMBER" shall have the meaning ascribed to it in
Section 14.1 hereof.
"SELLING SHAREHOLDER" shall have the meaning ascribed to it in
Section 14.1 hereof.
"SHAREHOLDER(S)" shall have the meaning ascribed to it in
Section 13.1 hereof.
"SHARES" shall have the meaning ascribed to it in Section 13.1
hereof.
"TAX DISTRIBUTION" shall have the meaning ascribed to it in
Section 6.10 hereof.
"TAX MATTERS MEMBER" shall have the meaning ascribed to it in
Section 8.6 hereof.
"TERMINATING DIVISION" shall have the meaning ascribed to it
in Section 15.5 hereof.
"THIRD PARTY" shall have the meaning ascribed to it in Section
17.2 hereof.
"VALUATION DATE" shall have the meaning ascribed to it in
Section 15.2 hereof.
v
{PAGE}
OPERATING AGREEMENT OF
MONTAUK BATTERY REALTY, LLC
AGREEMENT, made as of the 17th day of December, 2002, among DTHY
REALTY, INC., a New York corporation ("DTHY"), DOROTHY HERMAN ("Herman"), NEW
VALLEY REAL ESTATE CORPORATION, a Delaware corporation ("NV"), NEW VALLEY
MORTGAGE CORPORATION, a Delaware corporation ("New Valley Mortgage"), and THE
PRUDENTIAL REAL ESTATE FINANCIAL SERVICES OF AMERICA, INC., a California
corporation ("Prefsa") (DTHY, Herman, NV, New Valley Mortgage and Prefsa are
also each individually referred to herein as a "Member" and collectively as the
"Members"). W I T N E S S E T H:
WHEREAS, B&H Associates ("B&H" or the "Partnership") is a New York
partnership doing business as The Prudential Long Island Realty;
WHEREAS, the Partnership may have previously been, or may hereafter be,
converted to a New York limited liability company known as B&H Associates of NY,
LLC, which in accordance with Section 1007 of the New York Limited Liability
Company Law ("LLCL") is, in any event, the same entity that existed before the
conversion and all references herein to "B&H" or the "Partnership" shall be
deemed to apply to B&H Associates of NY, LLC;
WHEREAS, DTHY, NV, Burr Affiliates, Inc., a New York corporation
("BA"), Rangeley Lakes Corp., a New York corporation ("Rangeley"), and Jussam
Associates, LLC, a New York limited liability company ("Jussam"), were the
former partners in B&H;
WHEREAS, B&H of the Hamptons, LLC ("Hamptons") is a New York limited
liability company;
1
{PAGE}
WHEREAS, DTHY, NV, BA, Rangeley and Jussam were the former members of
Hamptons;
WHEREAS, PE Title Agency, LLC ("PE") is a New York limited liability
company;
WHEREAS, Herman, Carll S. Burr III ("Burr III") and Ralph Cusano
("Cusano") were the former members of PE;
WHEREAS, Burr Enterprises, Ltd., a New York corporation d/b/a Preferred
Empire Mortgage Company ("Preferred"), is a New York corporation engaged in the
mortgage brokerage business;
WHEREAS, Herman, Cusano, Burr III and New Valley Mortgage were the
shareholders of Preferred;
WHEREAS, simultaneous with the execution hereof, the Partnership is
redeeming the interests of BA, Rangeley and Jussam in the Partnership; Hamptons
is redeeming the interests of BA, Rangeley and Jussam in Hamptons; PE is
redeeming the interests of Burr III and Cusano in PE; and Preferred is redeeming
the interest of Burr III in Preferred;
WHEREAS, Preferred and Cusano are parties to an agreement pursuant to
which upon obtaining certain approvals from the New York State Banking
Department (the "Approvals") Preferred will redeem the interest of Cusano in
Preferred;
WHEREAS, simultaneous with the execution hereof, Herman is selling her
entire interest in PE to NV;
WHEREAS, simultaneous with the execution hereof, DTHY is selling a
portion of its interest in B&H to NV;
2
{PAGE}
WHEREAS, simultaneous with the execution hereof, each of DTHY and NV
are transferring their respective interests in each of the Partnership, Hamptons
and PE to the Montauk Battery Realty, LLC (the "Company");
WHEREAS, simultaneous with the execution hereof, Herman and New Valley
Mortgage are agreeing to convey their interests in Preferred to the Company upon
obtaining the Approvals;
WHEREAS, the Members desire to conduct business as members of a limited
liability company pursuant to the laws of the State of New York;
WHEREAS, the Members desire that the business and affairs of the
Company and the Divisions shall generally be managed by a Board of Managers (the
"Board") comprised of four (4) managers (each a "Manager" and, collectively, the
"Managers"), except with respect to certain decisions set forth herein which the
Board has determined shall be reserved to the Chief Executive Officer of the
Company (the "Chief Executive Officer"), all as hereinafter described;
WHEREAS, the Board desires that Herman shall be the Chief Executive
Officer;
NOW THEREFORE, in consideration of the mutual covenants, conditions and
representations set forth herein, the parties hereto hereby agree as follows:
1. NAME. The name of the Company is Montauk Battery Realty, LLC. The
Company may also do business under any other assumed name as the Board may
select. The Members have caused, or will hereafter cause, to be filed with the
Department of State of the State of New York the Articles of Organization for
the Company and shall hereafter satisfy all other requirements of the LLCL to
conduct the business of the Company in the State of New York.
3
{PAGE}
2. OFFICE. The principal office of the Company is 110 Walt Whitman
Road, Huntington Station, New York 11746 or such other place or places as the
Board shall hereafter designate.
3. BUSINESS. The business of the Company is to own all of the interests
in B&H, Hamptons and PE. It is also contemplated that (i) the Company will own a
majority interest in Preferred; (ii) B&H will operate a real estate brokerage
business in Queens; and (iii) a new entity will be formed by the Company which
will operate a real estate brokerage business in Brooklyn and Manhattan. The
Company may also own interests in other entities to be formed in the future. The
business of the Company shall also be to (i) enter, perform and carry out
contracts or take action of any kind necessary to, in connection with, or
incidental to the accomplishment of the foregoing, (ii) engage in any other
lawful act or activity as the Board, by unanimous vote of the Managers, shall
determine, and (iii) from time to time, to do any one or more of the things and
acts set forth herein and any lawful act or activity for which companies may be
formed under LLCL as the Board, by unanimous vote of the Managers, shall
determine.
4. TERM. The term of the Company commenced upon the filing of the
Articles of Organization and shall continue until terminated as hereinafter
provided.
5. CAPITAL CONTRIBUTIONS.
5.1 The capital contributions to the Company required of each of the
Members shall be as follows:
(a) Upon execution hereof (i) DTHY and NV shall each
contribute its respective interests in each of the Partnership and
Hamptons to the Company, and (ii) NV shall contribute its interest in
PE to the Company. Upon the receipt by Preferred of the Approvals,
Herman and New Valley Mortgage shall contribute their respective
interests in Preferred to the
4
{PAGE}
Company. It is agreed that for the purpose of establishing
capital account balances of the Members, the aggregate value of the
contributions being made by DTHY and Herman pursuant to this Section
5.1(a) is $6,608,258 and that DTHY and Herman, collectively, shall
receive a 40.01% interest in the Company as a result of such
contribution. It is agreed that for the purpose of establishing capital
account balances of the Members, the aggregate value of the
contributions being made by NV and New Valley Mortgage pursuant to this
Section 5.1(a) is $7,158,258 and that NV and New Valley Mortgage,
collectively, shall receive a 43.34% interest in the Company as a
result of such contribution.
(b) Upon execution hereof, NV shall make a capital
contribution of One Million One Hundred Thousand ($1,100,000) Dollars
to the Company payable by bank check or wire transfer, in exchange for
which NV shall receive a 6.66% interest in the Company.
(c) Upon the execution hereof, Prefsa shall make a capital
contribution of One Million Six Hundred Fifty Thousand ($1,650,000)
Dollars to the Company payable by bank check or wire transfer, in
exchange for which Prefsa shall receive an 9.99% interest in the
Company.
(d) After giving effect to the foregoing, each of the Members
shall have an initial capital account in the Company as set forth on
Schedule 5.1(d) attached hereto and made a part hereof.
5.2 An individual capital account shall be maintained for each
Member in accordance with normal tax and accounting procedures.
5.3 Unless otherwise stated herein, no interest shall be paid
by the Company on the capital contributions of the Members and no
Member shall, except as otherwise provided herein, have the right to
withdraw from the Company, or demand a refund or return of, its capital
5
{PAGE}
contribution, or demand property other than cash.
5.4 The foregoing provisions and the other provisions of this
Agreement relating to the maintenance of capital accounts are intended
to comply with Treasury Regulation Section 1.704-1(b), and shall be
interpreted and applied in a manner consistent with such Regulation. In
the event the accountants for the Company shall determine that it is
prudent to modify the manner in which the capital accounts, or any
debits or credits thereto, are computed in order to comply with such
Regulation, such modification may be made, provided that it is not
likely to have a material effect on the amounts distributable to any
Member pursuant to this Agreement. There shall be an adjustment to the
amounts debited or credited to capital accounts with respect to (a) any
property contributed to the Company or distributed to the Members and
(b) any liabilities that are secured by such contributed or distributed
property or that are assumed by the Company or the Members, in the
event the Board shall determine such adjustments are necessary or
appropriate pursuant to Treasury Regulation Section 1.704-1(b) (2)
(iv). The Board also shall make other adjustments in the event
unanticipated events might otherwise cause this Agreement not to comply
with Treasury Regulation Section 1.704-1(b).
5.5 No Member shall, at any time, have any obligation to the
Company or to any other Member to restore or contribute any deficit
balance in its capital account.
6. PROFITS AND LOSSES AND DISTRIBUTIONS.
6.1 The capital percentage interest of each Member (the
"Capital Percentage Interest") shall be as follows:
DTHY 31.94%
Herman 8.07%
NV 41.93%
New Valley Mortgage 8.07%
Prefsa 9.99%
6
{PAGE}
6.2 Profits or Losses of the Company shall be allocated to
262074
|
Gibson Dunn
As referenced in this Operating Agreement:
Gibson, Dunn – D. Lieberman, Esq.
If to Prefsa:
3333 Michelson Drive
Suite 1000
Irvine, CA 92612
Attention: General Counsel
With a copy to:
55
{PAGE}
Gibson, Dunn & Crutcher, LLP
4 Park Plaza, 18th Floor
Irvine, CA 92614
Attention: Teresa J. Farrell, Esq.
22. MISCELLANEOUS.
22.1 SUCCESSORS AND ASSIGNS;
_____________
dt 138473
;
| Montauk Battery Realty, LLC
|
Preview
Full Doc
| 2001 |
Operating Agreement [Form]
Operating Agreement [Form] (265K)
Doc #277307: Click preview link for longer preview.
FORM OF
OPERATING AGREEMENT
BETWEEN
[OWNER OF APPLICABLE RETIREMENT COMMUNITY]
("OWNER")
AND
MARRIOTT SENIOR LIVING SERVICES, INC.
("OPERATOR")
FOR
[NAME OF RETIREMENT COMMUNITY]
MARRIOTT SENIOR LIVING COMMUNITY
[CITY, STATE]
EFFECTIVE AS OF JUNE 21, 1997
-------------------------------------------------------------------------------
{PAGE}
OPERATING AGREEMENT
TABLE OF CONTENTS
{TABLE}
{S} {C}
ARTICLE 1 DEFINITION OF TERMS.....................................................................................1
Section 1.01 Definition of Terms....................................................................1
ARTICLE 2 APPOINTMENT OF OPERATOR................................................................................14
Section 2.01 Appointment; Exclusive License........................................................14
Section 2.02 Authority of Operator; Right of Possession............................................14
Section 2.03 Management Functions..................................................................15
Section 2.04 Limitations on Authority of Operator..................................................17
Section 2.05 Title Encumbrances....................................................................18
Section 2.06 Licenses and Permits..................................................................19
Section 2.07 Credit................................................................................19
Section 2.08 Representations and Warranties of Owner...............................................19
Section 2.09 Representations and Warranties of Operator............................................19
ARTICLE 3 OWNERSHIP OF RETIREMENT COMMUNITY......................................................................20
Section 3.01 Ownership of Retirement Community.....................................................20
ARTICLE 4 TERM...................................................................................................20
Section 4.01 Term..................................................................................20
Section 4.02 Actions to be Taken Upon Termination..................................................21
Section 4.03 Performance Termination...............................................................22
Section 4.04 Owner's Termination Option............................................................24
ARTICLE 5 COMPENSATION OF OPERATOR...............................................................................24
Section 5.01 Base Fee, Incentive Fee...............................................................24
ARTICLE 6 FINANCING OF THE RETIREMENT COMMUNITY..................................................................25
Section 6.01 Amendments of Management Agreement....................................................25
Section 6.02 Notice and Opportunity to Cure........................................................25
Section 6.03 Assignment of Management Agreement....................................................26
Section 6.04 Subordination of Management Agreement.................................................27
Section 6.05 Non-Disturbance Agreement.............................................................27
Section 6.06 Attornment............................................................................28
Section 6.07 No Modification or Termination of Agreement...........................................29
{/TABLE}
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FORM OF OPERATING AGREEMENT [DATE], PAGE i
{PAGE}
{TABLE}
{S} {C}
Section 6.08 Owner's Right to Finance the Retirement Community.....................................29
Section 6.09 Sale/Leaseback Transactions...........................................................29
Section 6.10 REIT Transactions.....................................................................30
Section 6.11 Covenant to Pay Debt Service..........................................................31
ARTICLE 7 WORKING CAPITAL AND FIXED ASSET SUPPLIES...............................................................31
Section 7.01 Working Capital.......................................................................31
Section 7.02 Fixed Asset Supplies..................................................................32
ARTICLE 8 REPAIRS, MAINTENANCE AND REPLACEMENTS..................................................................32
Section 8.01 Routine Repairs and Maintenance.......................................................32
Section 8.02 FF&E Reserve..........................................................................32
Section 8.03 Building Alterations, Improvements, Renewals, and Replacements........................35
Section 8.04 Liens.................................................................................36
Section 8.05 Ownership of Replacements.............................................................36
ARTICLE 9 BOOKKEEPING AND BANK ACCOUNTS..........................................................................37
Section 9.01 Books and Records.....................................................................37
Section 9.02 Retirement Community Accounts, Expenditures...........................................38
Section 9.03 Annual Operating Projection...........................................................39
Section 9.04 Operating Losses......................................................................40
ARTICLE 10 PROPRIETARY MARKS; TRADEMARK LICENSE;
INTELLECTUAL PROPERTY.................................................................................40
Section 10.01 Proprietary Marks.....................................................................40
Section 10.02 Trademark License.....................................................................40
Section 10.03 Purchase of Inventories and Fixed Asset Supplies......................................41
Section 10.04 Computer Software and Equipment.......................................................41
Section 10.05 Intellectual Property.................................................................41
Section 10.06 Breach of Covenant....................................................................42
ARTICLE 11 POSSESSION AND USE OF RETIREMENT COMMUNITY............................................................42
Section 11.01 Quiet Enjoyment.......................................................................42
Section 11.02 Use...................................................................................42
Section 11.03 Central Administrative Services.......................................................42
Section 11.04 Owner's Right to Inspect..............................................................43
Section 11.05 Indemnity.............................................................................43
{/TABLE}
-------------------------------------------------------------------------------
FORM OF OPERATING AGREEMENT [DATE], PAGE ii
{PAGE}
{TABLE}
{S} {C}
ARTICLE 12 INSURANCE.............................................................................................44
Section 12.01 Interim Insurance.....................................................................44
Section 12.02 Property and Operational Insurance....................................................44
Section 12.03 General Insurance Provisions..........................................................45
Section 12.04 Cost and Expense......................................................................46
Section 12.05 Owner's Option to Obtain Certain Insurance............................................46
ARTICLE 13 TAXES.................................................................................................47
Section 13.01 Real Estate and Personal Property Taxes...............................................47
ARTICLE 14 RETIREMENT COMMUNITY EMPLOYEES........................................................................48
Section 14.01 Employees.............................................................................48
ARTICLE 15 DAMAGE, CONDEMNATION AND FORCE MAJEURE................................................................50
Section 15.01 Damage and Repair.....................................................................50
Section 15.02 Condemnation..........................................................................51
Section 15.03 Force Majeure.........................................................................51
ARTICLE 16 DEFAULTS..............................................................................................52
Section 16.01 Definition of "Default"...............................................................52
Section 16.02 Definition of "Event of Default"......................................................53
Section 16.03 Remedies Upon an Event of Default.....................................................53
Section 16.04 Operator's Right to Specific Performance for
Owner's Wrongful Termination..........................................................54
Section 16.05 Owner's Estate........................................................................54
ARTICLE 17 ASSIGNMENT............................................................................................55
Section 17.01 Assignment............................................................................55
ARTICLE 18 SALE OF THE RETIREMENT COMMUNITY......................................................................56
Section 18.01 Sale of the Retirement Community......................................................56
Section 18.02 Assumption Agreement of Successor Owner...............................................58
{/TABLE}
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FORM OF OPERATING AGREEMENT [DATE], PAGE iii
{PAGE}
{TABLE}
{S} {C}
ARTICLE 19 MISCELLANEOUS.........................................................................................59
Section 19.01 Right to Make Agreement...............................................................59
Section 19.02 Consents..............................................................................59
Section 19.03 Relationship Between the Parties......................................................60
Section 19.04 Confidentiality.......................................................................60
Section 19.05 Applicable Law........................................................................60
Section 19.06 Covenants Running With the Land; Recordation..........................................60
Section 19.07 Headings..............................................................................61
Section 19.08 Notices...............................................................................61
Section 19.09 Environmental Matters.................................................................62
Section 19.10 Estoppel Certificates.................................................................62
Section 19.11 Arbitration...........................................................................63
Section 19.12 Affiliates............................................................................63
Section 19.13 Equity and Debt Offerings.............................................................64
Section 19.14 Restriction on Operator...............................................................64
Section 19.15 Entire Agreement......................................................................66
Section 19.16 Waiver................................................................................66
277307
|
Host Marriott
As referenced in this Operating Agreement [Form]:
Host Marriott Corp – in connection with its operations at the
Retirement Community.
"STOCK PURCHASE AGREEMENT" means that certain Stock Purchase Agreement
of even date herewith between Host Marriott Corp oration and Marriott Senior
Living Services, Inc.
"SUBSEQUENT OWNER" mean any individual or entity which acquires title
to a possession of the Retirement
_____________
Host Marriott Corp – execute this Agreement;
and (ii) such opinions of counsel (which may be provided by house counsel of
Operator or Marriott International, Inc. or Host Marriott Corp oration) as the
other party shall reasonably request regarding the matters described in this
Section 19.01.
C. Each party (the "Indemnifying Party")
_____________
Host Marriott Corp – 12) Similar Properties located in
either this or other Areas A as designated in this Agreement and similar
operating agreements between Operator and Host Marriott Corp oration or one or
more of its Affiliates, in the aggregate, or (ii) more than one such Similar
Property is located in any
_____________
dt 196153
;
Marriott Int'l
As referenced in this Operating Agreement [Form]:
Marriott International, Inc – establishing its authority to execute this Agreement;
and (ii) such opinions of counsel (which may be provided by house counsel of
Operator or Marriott International, Inc . or Host Marriott Corporation) as the
other party shall reasonably request regarding the matters described in this
Section 19.01.
C. Each
_____________
Marriott International, Inc – ___________________________________________
___________________________________________
___________________________________________
___________________________________________
TO OPERATOR:
Marriott Senior Living Services, Inc.
10400 Fernwood Road
Bethesda, Maryland 20817
Attn: Chief Financial Officer
COPY TO:
Marriott International, Inc .
10400 Fernwood Road
Bethesda, Maryland 20817
Attn: General Counsel
or at such other address as is from time to time designated by
_____________
Marriott International, Inc – Its:
-----------------------------
-------------------------------------------------------------------------------
FORM OF OPERATING AGREEMENT [DATE], PAGE 67
{PAGE}
JOINDER OF PARTY
For the purpose of inducing Owner to enter into this Agreement,
Marriott International, Inc . for itself and its Affiliates, hereby agrees to be
directly bound, as a party, to the provisions of Section 19.14 of
_____________
Marriott International, Inc – Section 19.14 of the above
Agreement, but not to any of the other terms and conditions of the Agreement.
IN WITNESS WHEREOF, Marriott International, Inc . has executed this
JOINDER OF PARTY as of the Effective Date.
ATTEST: MARRIOTT INTERNATIONAL, INC.
By:
-----------------------------------
Printed Name:
------------------------------------ -------------------------
Its:
-------------------------------------------------------------------------------
FORM OF OPERATING
_____________
MARRIOTT INTERNATIONAL, INC – and conditions of the Agreement.
IN WITNESS WHEREOF, Marriott International, Inc. has executed this
JOINDER OF PARTY as of the Effective Date.
ATTEST: MARRIOTT INTERNATIONAL, INC .
By:
-----------------------------------
Printed Name:
------------------------------------ -------------------------
Its:
-------------------------------------------------------------------------------
FORM OF OPERATING AGREEMENT [DATE], PAGE 68
{PAGE}
EXHIBIT A
[LIST APPLICABLE DESCRIPTION OF LAND]
{PAGE}
EXHIBIT B
[
_____________
dt 276136
;
|
Fannie Mae
As referenced in this Operating Agreement [Form]:
Fannie Mae – and two-tenths (1.2) in the case of a mortgage issued or insured by an
agency of the United States Government, or Fannie Mae or Freddie Mac or lending
institutions established by the federal government.
"CURE NOTICE" shall have the meaning set forth in Section 4.
_____________
Fannie Mae – or
eighty-five percent (85%) in the case of a mortgage issued or
insured by an agency of the United States Government, or
Fannie Mae or Freddie Mac or lending institutions established
by the federal government; or
(ii) the result obtained by (a) dividing the Operating Profit
_____________
dt 199035
;
 Freddie Mac
As referenced in this Operating Agreement [Form]:
Freddie Mac – 1.2) in the case of a mortgage issued or insured by an
agency of the United States Government, or Fannie Mae or Freddie Mac or lending
institutions established by the federal government.
"CURE NOTICE" shall have the meaning set forth in Section 4.03B.
"DAY(S)" means
_____________
Freddie Mac – percent (85%) in the case of a mortgage issued or
insured by an agency of the United States Government, or
Fannie Mae or Freddie Mac or lending institutions established
by the federal government; or
(ii) the result obtained by (a) dividing the Operating Profit for
the thirteen (13)
_____________
dt 230502
;
More... |
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| 2000 |
Subscription, Joint Development and Operating Agreement
Subscription, Joint Development and Operating Agreement (131K)
Doc #287334: Click preview link for longer preview.
SUBSCRIPTION, JOINT DEVELOPMENT AND OPERATING AGREEMENT
ELAN PHARMA INTERNATIONAL LIMITED
ELAN INTERNATIONAL SERVICES, LTD.
AND
ATRIX LABORATORIES, INC.
AND
ATRIX NEWCO, LIMITED
{PAGE} 2
INDEX
{TABLE}
{S} {C}
CLAUSE 1 DEFINITIONS
CLAUSE 2 NEWCO'S BUSINESS
CLAUSE 3 REPRESENTATIONS AND WARRANTIES
CLAUSE 4 AUTHORIZATION AND CLOSING
CLAUSE 5 DIRECTORS; MANAGEMENT AND R&D COMMITTEES
CLAUSE 6 THE BUSINESS PLAN AND REVIEWS
CLAUSE 7 RESEARCH AND DEVELOPMENT
CLAUSE 8 COMMERCIALIZATION
CLAUSE 9 OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS
CLAUSE 10 INTELLECTUAL PROPERTY RIGHTS
CLAUSE 11 CROSS LICENSING/EXPLOITATION OF PRODUCTS OUTSIDE FIELD
CLAUSE 12 REGULATORY
CLAUSE 13 MANUFACTURING
CLAUSE 14 TECHNICAL SERVICES AND ASSISTANCE
CLAUSE 15 AUDITORS, BANKERS,
ACCOUNTING REFERENCE DATE; SECRETARY
CLAUSE 16 TRANSFER OF SHARES; RIGHTS OF FIRST OFFER; TAG ALONG RIGHTS
CLAUSE 17 MATTERS REQUIRING STOCKHOLDERS' APPROVAL
CLAUSE 18 DISPUTES
{/TABLE}
2
{PAGE} 3
{TABLE}
{S} {C}
CLAUSE 19 TERMINATION
CLAUSE 20 SHARE RIGHTS
CLAUSE 21 CONFIDENTIALITY
CLAUSE 22 COSTS
CLAUSE 23 GENERAL
{/TABLE}
3
{PAGE} 4
THIS SUBSCRIPTION, JOINT DEVELOPMENT AND OPERATING AGREEMENT made this 18 day of
July, 2000
BETWEEN:
(1) ELAN PHARMA INTERNATIONAL LIMITED, a private limited company
incorporated under the laws of Ireland, and having its registered
office at WIL House, Shannon Business Park, Shannon, County Clare,
Ireland ("EPIL");
(2) ELAN INTERNATIONAL SERVICES, LTD., a Bermuda exempted limited liability
company incorporated under the laws of Bermuda, and having its
registered office at Clarendon House, 2 Church St., Hamilton, Bermuda
("EIS");
(3) ATRIX LABORATORIES, INC., a corporation duly incorporated and validly
existing under the laws of State of Delaware and having its principal
place of business at 2579 Midpoint Drive, Fort Collins, CO 80525-4417,
United States of America.
(4) ATRIX NEWCO, LIMITED a Bermuda exempted limited liability company
incorporated under the laws of Bermuda, and having its registered
office at Clarendon House, 2 Church St., Hamilton, Bermuda ("NEWCO").
RECITALS:
A. Newco desires to issue and sell to the Stockholders (as defined below),
and the Stockholders desire to purchase from Newco, for aggregate
consideration of $15,000,000, apportioned between them as set forth
herein, (i) 6,000 ordinary shares of Newco's common stock, par value
$1.00 per share (the "COMMON STOCK"), allocated to Atrix, and (ii)
6,000 shares of Newco's preferred stock, par value $1.00 per share (the
"PREFERRED STOCK"), allocated 3,612 Shares to Atrix and 2,388 Shares to
EIS.
B. As of the Closing Date, EPIL, has entered into a license agreement with
Newco, and Atrix has entered into a license agreement with Newco, in
connection with the license to Newco of the Elan Intellectual Property
and the Atrix Intellectual Property, respectively (each as defined
below).
C. Elan and Atrix have agreed to co-operate in the research, development
and commercialization of the Products (as defined below) based on their
respective technologies.
4
{PAGE} 5
D. Elan and Atrix have agreed to enter into this Agreement for the purpose
of recording the terms and conditions regulating their relationship
with each other, with respect to the Licensed Technologies and with
Newco.
NOW IT IS HEREBY AGREED AS FOLLOWS:
CLAUSE 1
DEFINITIONS
1.1 In this Agreement, the following terms shall, where not inconsistent
with the context, have the following meanings respectively.
"AFFILIATE" of any Person (in the case of a legal entity) shall mean
any other Person controlling, controlled or under the common control of
such first Person, as the case may be. For the purposes of this
definition, "control" shall mean direct or indirect ownership of fifty
percent (50%) or more of the stock or shares entitled to vote for the
election of directors and "controlling" and "controlled" shall be
construed accordingly. Newco is not an Affiliate of Elan or EIS.
"AGREEMENT" shall mean this agreement (which expression shall be deemed
to include the Recitals and the Schedules hereto).
"ATRIGEL(R)TECHNOLOGY" shall mean Atrix's proprietary [**].
"ATRIX DIRECTORS" has the meaning set forth in Clause 5.
"ATRIX IMPROVEMENTS" has the meaning assigned thereto in the Atrix
License Agreement.
"ATRIX INTELLECTUAL PROPERTY" has the meaning assigned thereto in the
Atrix License Agreement.
"ATRIX KNOW-HOW" has the meaning assigned thereto in the Atrix License
Agreement.
"ATRIX LICENSE AGREEMENT" shall mean the license agreement between
Atrix and Newco, of even date herewith, attached hereto in Schedule 2.
"ATRIX PATENTS" has the meaning assigned thereto in the Atrix License
Agreement.
"ATRIX SECURITIES PURCHASE AGREEMENT" shall mean that certain
Securities Purchase Agreement, of even date herewith, by and between
Atrix and EIS.
287334
|
Atrix Labs
As referenced in this Subscription, Joint Development and Operating Agreement:
ATRIX LABORATORIES, – DEVELOPMENT & OPERATIONS
{TEXT}
{PAGE} 1
EXHIBIT 99.5
SUBSCRIPTION, JOINT DEVELOPMENT AND OPERATING AGREEMENT
ELAN PHARMA INTERNATIONAL LIMITED
ELAN INTERNATIONAL SERVICES, LTD.
AND
ATRIX LABORATORIES, INC.
AND
ATRIX NEWCO, LIMITED
{PAGE} 2
INDEX
{TABLE}
{S} {C}
CLAUSE 1 DEFINITIONS
CLAUSE 2 NEWCO'S BUSINESS
CLAUSE 3 REPRESENTATIONS
_____________
ATRIX LABORATORIES, – liability
company incorporated under the laws of Bermuda, and having its
registered office at Clarendon House, 2 Church St., Hamilton, Bermuda
("EIS");
(3) ATRIX LABORATORIES, INC., a corporation duly incorporated and validly
existing under the laws of State of Delaware and having its principal
place of business
_____________
Atrix Laboratories, – International Services, Ltd.
102 St. James Court
Flatts, Smiths FL04
Bermuda
Attention: President
Telephone: 441-292-9169
Fax: 441-292-2224
Atrix at:
Atrix Laboratories, Inc.
2579 Midpoint Drive
Fort Collins, CO 80525-4417
USA
Attention: President
Telephone: 970-482-5868
Fax: 970-482-9735
44
{PAGE}
_____________
ATRIX LABORATORIES, – President and Chief Financial Officer
ELAN INTERNATIONAL SERVICES, LTD.
SIGNED
BY: /s/ DAVID R. BETHUNE
---------------------
David R. Bethune
Chairman and Chief Executive Officer
ATRIX LABORATORIES, INC.
SIGNED
BY: /s/ DAVID R. BETHUNE
---------------------
David R. Bethune
for and on behalf of
ATRIX NEWCO, LIMITED
50
{/TEXT}
{/DOCUMENT}
_____________
dt 239885
;
Elan
As referenced in this Subscription, Joint Development and Operating Agreement:
Elan
Corp – the directors of Newco.
"EIS DIRECTOR" has the meaning set forth in Clause 5.
"ELAN" shall mean EPIL and Affiliates and subsidiaries of Elan
Corp oration, plc. within the division of Elan Corporation, plc.
carrying on business as Elan
6
{PAGE} 7
Pharmaceutical Technologies but shall not include
_____________
Elan Corp – the meaning set forth in Clause 5.
"ELAN" shall mean EPIL and Affiliates and subsidiaries of Elan
Corporation, plc. within the division of Elan Corp oration, plc.
carrying on business as Elan
6
{PAGE} 7
Pharmaceutical Technologies but shall not include The Liposome Company,
Inc. and its subsidiaries,
_____________
Elan Corp – shall not include The Liposome Company,
Inc. and its subsidiaries, Axogen Limited and Neuralab Limited and
Affiliates and subsidiaries (present or future) of Elan Corp oration
plc. within the division of Elan Pharmaceuticals which incorporates,
inter alia, EPIL (to the extent that EPIL is the owner of patents,
_____________
Elan Corp – that EPIL is the owner of patents,
know-how or other intellectual property or technology invented and/or
developed within the division of Elan Corp oration, plc carrying on
business as Elan Pharmaceuticals), Athena Neurosciences, Inc., Elan
Pharmaceuticals, Inc. and Elan Europe Limited.
"ELAN IMPROVEMENTS" has the meaning
_____________
Elan Corp – Business Plan.
8.2 At such time as Newco notifies Elan in writing that Newco in good faith
intends to commercialize a Product, Elan Corp oration, Plc or any
Affiliate shall have a right of first negotiation to negotiate the
terms of any agreement for the commercialization of
_____________
dt 236895
;
Elan Pharma
As referenced in this Subscription, Joint Development and Operating Agreement:
Elan
Pharmaceuticals, Inc – of patents,
know-how or other intellectual property or technology invented and/or
developed within the division of Elan Corporation, plc carrying on
business as Elan Pharmaceuticals), Athena Neurosciences, Inc., Elan
Pharmaceuticals, Inc . and Elan Europe Limited.
"ELAN IMPROVEMENTS" has the meaning assigned thereto in the Elan
License Agreement.
"ELAN INTELLECTUAL PROPERTY" has the meaning assigned thereto in the
Elan License Agreement.
"
_____________
dt 1393906
;
|
Morrison
As referenced in this Subscription, Joint Development and Operating Agreement:
Morrison & Foerster – Fort Collins, CO 80525-4417
USA
Attention: President
Telephone: 970-482-5868
Fax: 970-482-9735
44
{PAGE} 45
with a copy to:
Morrison & Foerster LLP
5200 Republic Plaza
370 17th Street
Denver, Colorado 80202-5638
USA
Attention: Warren L. Troupe, Esq.
Telephone: 303-592-2255
Facsimile: 303-
_____________
dt 241920
;
Elan Pharma International Limited;
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| 2003 |
Operating Agreement [Amended and Restated]
Operating Agreement [Amended and Restated] (187K)
Doc #294163: Click preview link for longer preview.
AMENDED AND RESTATED
OPERATING AGREEMENT
OF
CHARTERMAC CAPITAL COMPANY, LLC
{PAGE}
SCHEDULES
Schedule A - Addresses for Notices
EXHIBITS
Exhibit A - Members and Membership Interests
Exhibit B - Allocations
Exhibit C - Exchange Rights Agreement
Exhibit D - Form of Certificate
{PAGE}
AMENDED AND RESTATED
OPERATING AGREEMENT
OF
CHARTERMAC CAPITAL COMPANY, LLC
THIS AMENDED AND RESTATED OPERATING AGREEMENT OF CHARTERMAC CAPITAL
COMPANY, LLC, a Delaware limited liability company (the "Company"), dated as of
November 17, 2003 (this "Agreement"), is entered into by and among CharterMac
Corporation, a Delaware corporation, as managing member (the "Managing Member"),
and the Persons (as defined below) whose names are set forth as Investor Members
(as defined below) on Exhibit A attached hereto (as it may be amended from time
to time), upon the execution and delivery by them of additional signature pages
to this Agreement.
WHEREAS, the Company was formed under the Delaware Limited Liability
Company Act (6 Del. C. Section 18-101, et seq.) (as amended from time to time,
the "Company Act"), by the filing of a Certificate of Formation of the Company
with the Delaware Secretary of State on November 14, 2002 (as amended from time
to time, the "Certificate") and the execution and delivery by the Managing
Member of an operating agreement dated as of November 14, 2002 (the "Original
Agreement");
WHEREAS, the Company and certain of the Initial Investor Members (as
defined below) entered into that certain contribution agreement dated as of
December 17, 2002 (as amended from time to time, the "Contribution Agreement"),
and the Company and the other Initial Investor Members entered into that certain
contribution agreement dated as of November 17, 2003 (the "Fried Contribution
Agreement") pursuant to which the parties thereto agreed that, subject to the
terms of the Contribution Agreement and the Fried Contribution Agreement, as
applicable, upon the occurrence of the closing under the Contribution Agreement
and the Fried Contribution Agreement (the "Closing"), the Initial Investor
Members would transfer the assets described in the Contribution Agreement and
the Fried Contribution, as applicable, in exchange for the issuance by the
Company to the Initial Investor Members of limited liability company interests
in the Company and the payment of cash;
WHEREAS, Closing under the Contribution Agreement and the Fried
Contribution Agreement has occurred concurrently with the execution and delivery
of this Agreement and each of the Persons identified on Exhibit A as an Investor
Member is being admitted to the Company as an Investor Member in accordance with
terms of this Agreement; and
WHEREAS, the parties hereto desire that this Agreement amend and restate
the Original Agreement in its entirety.
NOW THEREFORE, in consideration of the mutual covenants herein
contained, and other valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties do hereby agree as follows:
{PAGE}
ARTICLE 1
DEFINED TERMS
The following definitions shall be for all purposes, unless otherwise
clearly indicated to the contrary, applied to the terms used in this Agreement.
"Additional Investor Member" means a Person (other than an Initial
Investor Member) that has executed and delivered an additional investor member
signature page, has been admitted to the Company as an Investor Member pursuant
to Section 4.3 hereof and is shown as such on Exhibit A to this Agreement.
"Adjusted Capital Account Deficit" means with respect to any Member, the
negative balance, if any, in such Member's Capital Account as of the end of any
Company Year, determined after giving effect to the following adjustments:
(a) credit to such Capital Account any portion of such negative
balance which such Member (i) is treated as obligated to restore to the
Company pursuant to the provisions of Section 1.704-1(b)(2)(ii)(c) of
the Regulations, or (ii) is deemed to be obligated to restore to the
Company pursuant to the penultimate sentences of Sections 1.704-2(g)(1)
and 1.704-2(i)(5) of the Regulations; and
(b) debit to such Capital Account the items described in Sections
1.704-1(b)(2)(ii)(d)(4), (5) and (6) of the Regulations.
"Adjusted Contribution" means the Capital Contributions of any Investor
Member reduced by the total distributions to such Member other than
distributions made pursuant to Section 5.1(a) and Section 5.1(b).
"Adjustment" has the meaning set forth in the Contribution Agreement.
"Affiliate" means,
(a) with respect to any individual Person, (i) such Person's
spouse, parents, parents-in-law, lineal descendents, nephews, nieces,
brothers, sisters, brothers-in-law, sisters-in-law, stepchildren,
sons-in-law and daughters-in-law or their respective spouses; (ii) any
corporation, limited partnership or limited liability company in which
all of the shares, partnership interests or membership interests are
owned by such Person or the persons listed in (i); (iii) in the case of
the death of such Persons or the persons listed in (i), a transfer by
will or by the laws of intestate succession to executors,
administrators, testamentary trustees, legatees or beneficiaries; and
(iv) trusts, the only beneficiaries of which are listed in (i), (ii) or
(iii) and/or are charitable organizations; and
(b) with respect to any Entity, any Person which, directly or
indirectly through one or more intermediaries, controls, is controlled
by, or is under common control with, any such Entity. The term "control"
means the possession, direct or indirect, of the power to direct or
cause the direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or otherwise.
{PAGE}
"Agreement" means this Amended and Restated Operating Agreement, as
originally executed and as amended, modified, supplemented or restated from time
to time, as the context requires.
"Assignee" means a Permitted Transferee who has not become a Substituted
Investor Member and who has the rights set forth in Section 11.5.
"Available Cash" means, with respect to the applicable period, the
excess, if any, of
(a) the gross cash receipts of the Company and its Subsidiaries
for such period from all sources whatsoever, over
(b) the total cash paid by the Company and its Subsidiaries
during such period for all purposes of the Company whatsoever but not
including (i) distributions to Members; (ii) any loans made by the
Company to CharterMac, the Managing Member or any of their Affiliates
that the Company does not control, directly or indirectly; (iii) any
payments made with respect to any loans made by the Managing Member or
its Affiliates to the Company; or (iv) any amounts paid by the Company
pursuant to Section 7.5,
plus any previously undistributed Available Cash from any prior period.
Notwithstanding the foregoing, Available Cash shall not include any cash
received or reductions in reserves, or take into account any disbursements made
or reserves established, after the dissolution of the Company.
"Capital Account" means, with respect to any Member, the capital account
maintained in accordance with Sections 1.704-1(b) and 1.704-2 of the
Regulations, and shall be interpreted and applied in a manner consistent with
such Regulations. In the event the Managing Member shall reasonably determine
that it is prudent to modify the manner in which the Capital Accounts, or any
debits or credits thereto are computed in order to comply with such Regulations,
the Managing Member may make such modification; provided that it does not have a
material adverse effect on the amounts distributable to any Investor Member
pursuant to Article 13 hereof upon the dissolution of the Company.
"Capital Contribution" means, with respect to any Member, any cash, cash
equivalents or the Gross Asset Value of Contributed Property (less any debt
assumed by the Company in respect thereof or to which such Contributed Property
is subject) which such Member contributes or is deemed to contribute to the
Company pursuant to Article 4 hereof.
"Certificate" has the meaning set forth in the preamble.
"CharterMac" means CharterMac, a statutory trust formed under the laws
of Delaware.
"CharterMac Distribution Date" means each date on which CharterMac makes
a distribution with respect to CharterMac Common Shares.
"CharterMac Common Shares" means common shares of beneficial interest of
CharterMac.
{PAGE}
"CharterMac Extraordinary Cash Transaction" has the meaning set forth in
8.2(d).
"CharterMac Extraordinary Non-Cash Transaction" has the meaning set
forth in 8.2(d).
"CharterMac Extraordinary Transaction" means, with respect to
CharterMac, a liquidation, dissolution, sale of all or substantially all of its
assets, merger or consolidation (whether or not CharterMac is the surviving
294163
|
CharterMac
As referenced in this Operating Agreement [Amended and Restated]:
CHARTERMAC – 6
{FILENAME}opag.txt
{DESCRIPTION}EX. 99.7 - CAPITAL OP AG
{TEXT}
Exhibit 99.7
EXECUTION COPY
--------------
AMENDED AND RESTATED
OPERATING AGREEMENT
OF
CHARTERMAC CAPITAL COMPANY, LLC
{PAGE}
SCHEDULES
Schedule A - Addresses for Notices
EXHIBITS
Exhibit A - Members and Membership Interests
Exhibit B - Allocations
Exhibit C - Exchange
_____________
CHARTERMAC – and Membership Interests
Exhibit B - Allocations
Exhibit C - Exchange Rights Agreement
Exhibit D - Form of Certificate
{PAGE}
AMENDED AND RESTATED
OPERATING AGREEMENT
OF
CHARTERMAC CAPITAL COMPANY, LLC
THIS AMENDED AND RESTATED OPERATING AGREEMENT OF CHARTERMAC CAPITAL
COMPANY, LLC, a Delaware limited liability company (the "Company"), dated as
_____________
CHARTERMAC – Exhibit D - Form of Certificate
{PAGE}
AMENDED AND RESTATED
OPERATING AGREEMENT
OF
CHARTERMAC CAPITAL COMPANY, LLC
THIS AMENDED AND RESTATED OPERATING AGREEMENT OF CHARTERMAC CAPITAL
COMPANY, LLC, a Delaware limited liability company (the "Company"), dated as of
November 17, 2003 (this "Agreement"), is entered into by and
_____________
CharterMac
– COMPANY, LLC, a Delaware limited liability company (the "Company"), dated as of
November 17, 2003 (this "Agreement"), is entered into by and among CharterMac
Corporation, a Delaware corporation, as managing member (the "Managing Member"),
and the Persons (as defined below) whose names are set forth as
_____________
CharterMac, – period for all purposes of the Company whatsoever but not
including (i) distributions to Members; (ii) any loans made by the
Company to CharterMac, the Managing Member or any of their Affiliates
that the Company does not control, directly or indirectly; (iii) any
payments made with
_____________
dt 253556
;
Citibank
As referenced in this Operating Agreement [Amended and Restated]:
Citibank, N.A. – J.
Michael Fried and Related General II, L.P.
"Interest Rate" means the prime rate of interest published from time to
time by Citibank, N.A. , or its successor, or, if such rate is not published, as
determined by the Managing Member by any other reasonable means.
"Investor
_____________
dt 248964
;
Citicorp USA
As referenced in this Operating Agreement [Amended and Restated]:
Citicorp USA, Inc – the Company and the
Managing Member in favor of Fleet National Bank, as agent for itself, Merrill
Lynch Community Development Company, LLC, and Citicorp USA, Inc .
"Lien" means any lien, security interest, mortgage, deed of trust,
charge, claim, encumbrance, pledge, option, right of first offer or first
refusal
_____________
Citicorp USA, Inc – the Company and the Managing Member in favor of Fleet
National Bank, as agent for itself, Merrill Lynch Community Development Company,
LLC and Citicorp USA, Inc .
"Special Common Units" means Units issued to the Investor Members.
"Special Preferred Shares" has the meaning set forth in the Exchange
Rights
_____________
dt 247958
;
|
Fleet National
As referenced in this Operating Agreement [Amended and Restated]:
Fleet National Bank, – Joint and Several Guaranty to be
entered into by Related Capital Company LLC, CharterMac, the Company and the
Managing Member in favor of Fleet National Bank, as agent for itself, Merrill
Lynch Community Development Company, LLC, and Citicorp USA, Inc.
"Lien" means any lien, security interest, mortgage, deed
_____________
Fleet
National Bank, – Loan Agreement to be entered into among RCC Credit Facility,
L.L.C., CharterMac, the Company and the Managing Member in favor of Fleet
National Bank, as agent for itself, Merrill Lynch Community Development Company,
LLC and Citicorp USA, Inc.
"Special Common Units" means Units issued to the
_____________
dt 245895
;
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Full Doc
| 2001 |
Subscription, Joint Development and Operating Agreement
Subscription, Joint Development and Operating Agreement (127K)
Doc #305672: Click preview link for longer preview.
29 June 2001
SUBSCRIPTION, JOINT DEVELOPMENT AND OPERATING AGREEMENT
ELAN CORPORATION, PLC.
ELAN INTERNATIONAL SERVICES, LTD.
SAFESCIENCE, INC.
AND
SAFESCIENCE NEWCO, LTD.
1
{PAGE}
INDEX
-----
CLAUSE 1 DEFINITIONS
CLAUSE 2 BUSINESS
CLAUSE 3 REPRESENTATIONS AND WARRANTIES
CLAUSE 4 AUTHORIZATION AND CLOSING
CLAUSE 5 DIRECTORS; STEERING COMMITTEE
CLAUSE 6 THE BUSINESS PLAN AND REVIEWS
CLAUSE 7 RESEARCH AND DEVELOPMENT
CLAUSE 8 COMMERCIALIZATION
CLAUSE 9 OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS
CLAUSE 10 INTELLECTUAL PROPERTY RIGHTS
CLAUSE 11 CROSS LICENSING/EXPLOITATION OF NEWCO INTELLECTUAL PROPERTY OUTSIDE
THE FIELD
CLAUSE 12 REGULATORY MATTERS/CLINICAL TRIALS
CLAUSE 13 MANUFACTURING
CLAUSE 14 TECHNICAL SERVICES AND ASSISTANCE
CLAUSE 15 AUDITORS, BANKERS, ACCOUNTING REFERENCE DATE; SECRETARY
CLAUSES 16 TRANSFER OF SHARES; RIGHTS OF FIRST OFFER; TAG ALONG RIGHTS
CLAUSE 17 MATTERS REQUIRING SHAREHOLDERS' APPROVAL
CLAUSE 18 DISPUTES
2
{PAGE}
CLAUSE 19 TERMINATION
CLAUSE 20 SHARE RIGHTS
CLAUSE 21 CONFIDENTIALITY
CLAUSE 22 COSTS
CLAUSE 23 GENERAL
3
{PAGE}
THIS SUBSCRIPTION, JOINT DEVELOPMENT AND OPERATING AGREEMENT dated 29 June 2001
and effective as of the Closing Date (as defined below)
BETWEEN:
(1) ELAN CORPORATION, PLC., a public limited company incorporated under the
laws of Ireland, and having its registered office at Lincoln House, Lincoln
Place, Dublin 2, Ireland;
(2) ELAN INTERNATIONAL SERVICES, LTD., a Bermuda exempted limited liability
company incorporated under the laws of Bermuda, and having its registered
office at Clarendon House, 2 Church St., Hamilton, Bermuda ("EIS");
(3) SAFESCIENCE, INC. a corporation duly incorporated and validly existing
under the laws of the State of Nevada and having its principal place of
business at Park Square Building, 31 St. James Avenue, 8th Floor, Boston,
Massachusetts 02116, United States of America; and
(4) SAFESCIENCE NEWCO, LTD. a Bermuda exempted limited liability company
incorporated under the laws of Bermuda, and having its registered office at
Clarendon House, 2 Church St., Hamilton, Bermuda ("Newco").
RECITALS:
A. Newco desires to issue and sell to SafeScience, and SafeScience desires to
purchase from Newco, for aggregate consideration of $7,500,000, 6,000
Newco's common Shares, par value $1.00 per share (the "Common Shares").
Additionally, Newco desires to issue and sell to the Shareholders (as
defined below), and the Shareholders desire to purchase from Newco, for
aggregate consideration of $7,500,000 apportioned between them as set forth
herein, 6,000 Newco's preference Shares, par value $1.00 per share (the
"Preference Shares"), allocated 3,612 Shares to SafeScience for aggregate
consideration of $4,515,000 and 2,388 Shares to EIS for aggregate
consideration of $2,985,000.
B. As of the Closing Date, Elan Corp, has entered into the Elan License
Agreement, and SafeScience has entered into the SafeScience License
Agreement, in connection with the license to Newco of the Elan Intellectual
Property and the SafeScience Intellectual Property, respectively (each as
defined below).
C. Elan and SafeScience have agreed to co-operate in the research and
development of the Products (as defined below) based on their respective
technologies.
4
{PAGE}
D. Elan and SafeScience have agreed to enter into this Agreement for the
purpose of recording the terms and conditions regulating their relationship
with each other, with respect to the Licensed Technologies, and with Newco.
NOW IT IS HEREBY AGREED AS FOLLOWS:
CLAUSE 1
DEFINITIONS
1.1 In this Agreement, the following terms shall, where not inconsistent with
the context, have the following meanings respectively:
"Affiliate" shall mean any corporation or entity controlling, controlled by
or under the common control of Elan or SafeScience or any third party, as
the case may be, excluding, in the case of Elan, an Elan JV. For the
purpose of this definition, (i)"control" shall mean direct or indirect
ownership of [...***...] or more of the stock or shares entitled to vote
for the election of directors; and (ii) Newco shall not be an Affiliate of
Elan, Elan Corp, or EIS, nor shall Elan, Elan Corp, or EIS be an Affiliate
of Newco.
"Agreement" shall mean this agreement (which expression shall be deemed to
include the Recitals and the Schedules hereto).
"Board" shall mean the board of directors of Newco.
"Business" shall mean the business specified in the Business Plan.
"Business Plan" shall mean the business plan and program of development to
be agreed by Elan and SafeScience pursuant to Clause 6, with respect to the
research and development of the Products that shall contain, among other
things, to the extent practicable, the research and development objectives,
desired Product specifications, clinical indications, preliminary clinical
trial designs (Phase I/II), development timelines, budgeted costs and the
relative responsibilities of SafeScience and Elan as it relates to the
implementation of the R&D Plan.
"Certificate of Designations" shall mean that certain certificate of
designations, preferences and rights of Series A, B, and C Shares of
SafeScience issued on the Closing Date.
"Closing Date" shall mean the Initial Closing Date.
305672
|
Elan
As referenced in this Subscription, Joint Development and Operating Agreement:
ELAN CORP – C.F.R. SECTIONS 200.80(B)(4),
200.83 AND 240.24B-2
29 June 2001
SUBSCRIPTION, JOINT DEVELOPMENT AND OPERATING AGREEMENT
ELAN CORP ORATION, PLC.
ELAN INTERNATIONAL SERVICES, LTD.
SAFESCIENCE, INC.
AND
SAFESCIENCE NEWCO, LTD.
1
{PAGE}
INDEX
-----
CLAUSE 1 DEFINITIONS
CLAUSE 2 BUSINESS
CLAUSE 3
_____________
ELAN CORP – THIS SUBSCRIPTION, JOINT DEVELOPMENT AND OPERATING AGREEMENT dated 29 June 2001
and effective as of the Closing Date (as defined below)
BETWEEN:
(1) ELAN CORP ORATION, PLC., a public limited company incorporated under the
laws of Ireland, and having its registered office at Lincoln House, Lincoln
Place, Dublin
_____________
Elan Corp – of $4,515,000 and 2,388 Shares to EIS for aggregate
consideration of $2,985,000.
B. As of the Closing Date, Elan Corp , has entered into the Elan License
Agreement, and SafeScience has entered into the SafeScience License
Agreement, in connection with the license to
_____________
Elan Corp – of the stock or shares entitled to vote
for the election of directors; and (ii) Newco shall not be an Affiliate of
Elan, Elan Corp , or EIS, nor shall Elan, Elan Corp, or EIS be an Affiliate
of Newco.
"Agreement" shall mean this agreement (which expression shall
_____________
Elan Corp – vote
for the election of directors; and (ii) Newco shall not be an Affiliate of
Elan, Elan Corp, or EIS, nor shall Elan, Elan Corp , or EIS be an Affiliate
of Newco.
"Agreement" shall mean this agreement (which expression shall be deemed to
include the Recitals and
_____________
dt 281847
;
Elan Pharma
As referenced in this Subscription, Joint Development and Operating Agreement:
Elan Pharmaceuticals, Inc – owner of patents, know-how or other
intellectual property or technology invented and/or developed within the
division of Elan Corp carrying on business as Elan Pharmaceuticals), Athena
Neurosciences, Inc., Elan Pharmaceuticals, Inc . and Elan Europe Limited.
"FDA" shall mean the United States Food and Drug Administration or any
other successor agency in the USA.
"Field" shall mean the prevention and treatment
_____________
dt 1393920
;
|
McDermott Will
As referenced in this Subscription, Joint Development and Operating Agreement:
McDermott, Will – St. James Avenue, 8th Floor
Boston, MA 02116
USA
Attention: President
Telephone: (617) 422-0674
Fax: (617) 422-0675
with a copy to:
McDermott, Will & Emery
50 Rockefeller Plaza
New York, New York 10020-1605
Attention: Cheryl V. Reicin
Telephone (212) 547-5400
Fax: (212) 547-5444
_____________
McDermott, Will – St. James Avenue, 8th Floor
Boston, MA 02116
USA
Attention: President
Telephone: (617) 422-0674
Fax: (617) 422-0675
with a copy to:
McDermott, Will & Emery
50 Rockefeller Plaza
New York, New York 10020-1605
Attention: Cheryl V. Reicin
Telephone (212) 547-5400
Fax: (212) 547-5444
_____________
dt 281762
|
Preview
Full Doc
| 2002 |
Subscription, Joint Development and Operating Agreement [Amended and Restated]
Subscription, Joint Development and Operating Agreement [Amended and Restated] (139K)
Doc #307236: Click preview link for longer preview.
AMENDED AND RESTATED
SUBSCRIPTION, JOINT DEVELOPMENT AND OPERATING AGREEMENT
BETWEEN
ELAN CORPORATION, PLC
ELAN INTERNATIONAL SERVICES, LTD.
AND
GENEREX BIOTECHNOLOGY CORPORATION
AND
GENEREX (BERMUDA), LTD.
{PAGE}
INDEX
-----
CLAUSE 1 DEFINITIONS
CLAUSE 2 NEWCO'S BUSINESS
CLAUSE 3 REPRESENTATIONS AND WARRANTIES
CLAUSE 4 AUTHORIZATION AND CLOSING
CLAUSE 5 DIRECTORS; MANAGEMENT AND R&D COMMITTEES
CLAUSE 6 THE BUSINESS PLAN AND REVIEWS
CLAUSE 7 RESEARCH AND DEVELOPMENT
CLAUSE 8 COMMERCIALIZATION
CLAUSE 9 OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS/NONCOM PETITION
CLAUSE 10 INTELLECTUAL PROPERTY RIGHTS
CLAUSE 11 CROSS LICENSING/EXPLOITATION OF PRODUCTS OUTSIDE FIELDS
CLAUSE 12 REGULATORY MATTERS/CLINICAL TRIALS
CLAUSE 13 MANUFACTURING
CLAUSE 14 TECHNICAL SERVICES AND ASSISTANCE
CLAUSE 15 AUDITORS, BANKERS,
ACCOUNTING REFERENCE DATE; SECRETARY
CLAUSE 16 TRANSFER OF SHARES; RIGHTS OF FIRST OFFER; TAG ALONG RIGHTS
CLAUSE 17 MATTERS REQUIRING DIRECTORS' APPROVAL
CLAUSE 18 DISPUTES
CLAUSE 19 TERMINATION
CLAUSE 20 SHARE RIGHTS
CLAUSE 21 CONFIDENTIALITY
CLAUSE 22 COSTS
CLAUSE 23 GENERAL
{PAGE}
THIS AMENDED AND RESTATED SUBSCRIPTION, JOINT DEVELOPMENT AND OPERATING
AGREEMENT made this 15th day of January 2002
BETWEEN:
(1) ELAN CORPORATION, PLC, a public limited company incorporated under the
laws of Ireland, and having its registered office at Lincoln House,
Lincoln Place, Dublin 2, Ireland;
(2) ELAN INTERNATIONAL SERVICES, LTD., a Bermuda exempted limited liability
company incorporated under the laws of Bermuda, and having its
registered office at Clarendon House, 2 Church St., Hamilton, Bermuda
("EIS");
(3) GENEREX BIOTECHNOLOGY CORPORATION a corporation duly incorporated and
validly existing under the laws of Delaware; and
(4) GENEREX (BERMUDA), LTD. a Bermuda exempted limited liability company
incorporated under the laws of Bermuda, and having its registered
office at Clarendon House, 2 Church St., Hamilton, Bermuda ("Newco").
RECITALS:
A. Newco, Generex, Elan and EIS have entered into a Subscription, Joint
Development and Operating Agreement, dated as of January 17, 2001 (the
"Original JDOA"). Capitalized terms used herein are defined below.
B. Pursuant to the Original JDOA, Newco issued and sold to Generex, and
Generex purchased from Newco, for aggregate consideration of $7.5
million, 6,000 Newco's common shares, par value $1.00 per share (the
"Common Shares").
Additionally, Newco issued and sold to the Shareholders (as defined
below), and the Shareholders purchased from Newco, for aggregate
consideration of $7.5 million apportioned between them as set forth
herein, 6,000 Newco's preference Shares, par value $1.00 per share (the
"Preference Shares"), allocated 3,612 Preference Shares to Generex for
aggregate consideration of $4.515 million and 2,388 Preference Shares
to EIS for aggregate consideration of $2.985 million.
B. As of the Closing Date, Elan had entered into the Original Elan License
Agreement, and Generex has entered into the Original Generex License
Agreement.
1
{PAGE}
C. Elan and Generex have agreed to co-operate in the research, development
and commercialization of the Products (as defined below) based on their
respective technologies.
D. Elan and Generex entered into the Original JDOA for the purpose of
recording the terms and conditions regulating their relationship with
each other, with respect to the licenses of intellectual property
granted under the Original License Agreements.
E. Contemporaneously herewith, Elan and Newco are amending the Original
Elan License Agreement and entering into the Amended Elan License
Agreement with respect to the Elan Intellectual Property and Generex
and Newco are amending the Original Generex License Agreement and
entering into the Amended Generex License Agreement with respect to the
Generex Intellectual Property.
F. The Parties desire to desire to amend and restate the Original JDOA in
its entirety, in accordance with the terms and conditions set forth
below.
NOW IT IS HEREBY AGREED AS FOLLOWS:
CLAUSE 1
DEFINITIONS
1.1 In this Amended JDOA, the following terms shall, where not inconsistent
with the context, have the following meanings respectively.
"Abandoned Compound" shall have the meaning as such term is defined in
Clause 2.
"Additional Compound" shall have the meaning as such term is defined in
clause 2.
"Affiliate" shall mean any corporation or entity controlling,
controlled or under the common control of Elan or Generex or any third
party, as the case may be, excluding, in the case of Elan an Elan JV.
For the purpose of this definition, (i) "control" shall mean direct or
indirect ownership of [***] or more of the Shares or shares entitled to
vote for the election of directors and (ii) Newco shall not be an
Affiliate of Elan or EIS.
"Alternative Compound(s)" shall have the meaning as such term is
defined in Clause 2.4.
307236
| |
Eckert Seamans
As referenced in this Subscription, Joint Development and Operating Agreement [Amended and Restated]:
Eckert Seamans – Corporation
33 Harbour Square, Suite 202,
Toronto, Ontario
Canada M5J 2G2
Attn: Chief Executive Officer
Telephone [***]
Fax: [***]
43
{PAGE}
with a copy to:
Eckert Seamans Cherin & Mellott, LLC
1515 Market Street
9th Floor
Philadelphia, PA 19102
Attention: John G. Chou, Esq.
Newco at:
Clarendon House,
2 Church
_____________
dt 319725
|
| Full Doc
| 2003 |
Operating Agreement
Operating Agreement (11K)
Doc #333025: This document is immediately available for purchase, but does not have a preview available for viewing.
333025
| |
Greenberg
As referenced in this Operating Agreement:
Greenberg Traurig – 3. AGENT FOR SERVICE OF PROCESS. The agent for service of process
for the Company shall be C. Timothy White, Esq., c/o Greenberg Traurig , LLP,
2375 E. Camelback Road, Suite 700, Phoenix, Arizona 85016, or such other person
as the Member shall appoint from time to
_____________
dt 701111
|
Preview
Full Doc
| 2000 |
Operating Agreement [Amended and Restated 2000]
Operating Agreement [Amended and Restated 2000] (99K)
Doc #335424: Click preview link for longer preview.
2000 AMENDED AND RESTATED
OPERATING AGREEMENT
OF
TW HOLDINGS, L.L.C.
{PAGE}
TABLE OF CONTENTS
Page
ARTICLE 1: FORMATION AND DEFINITIONS..........................................2
1.1 Formation.....................................................2
1.2 Company Name..................................................2
1.3 Office and Agent..............................................2
1.4 Foreign Qualification.........................................2
1.5 Term..........................................................2
1.6 Definitions...................................................2
ARTICLE 2: PURPOSES AND POWERS................................................9
2.1 Purpose.......................................................9
2.2 Powers........................................................9
ARTICLE 3: MEMBERS; MANAGEMENT; VOTING.......................................10
3.1 Admission of Transferees as Members.........................10
3.2 Managing Directors..........................................10
3.3 Board Vote..................................................11
3.4 Unanimous Vote..............................................11
3.5 Expense Reimbursement; Indemnification......................11
3.6 No Resignation or Retirement................................11
ARTICLE 4: CAPITAL AND CAPITAL ACCOUNTS......................................12
4.1 Maintenance.................................................12
4.2 Revaluation.................................................12
4.3 Contributions; Ownership Interests..........................13
4.4 Additional Contributions....................................13
4.5 No Withdrawal of Capital....................................13
4.6 No Interest on Capital......................................13
4.7 No Drawing Accounts.........................................13
4.8 Transfers of Capital Accounts...............................13
ARTICLE 5: ALLOCATION OF PROFITS AND LOSSES..................................14
5.1 Profits and Losses..........................................14
5.2 General Allocation Rule.....................................14
5.3 Exception...................................................14
5.4 Tax Allocations.............................................14
5.5 Transfer....................................................14
5.6 Contributed and Revalued Property...........................15
5.7 Tax Credits.................................................15
ARTICLE 6: DISTRIBUTIONS.....................................................15
6.1 Net Cash....................................................15
6.2 Liquidating Distributions...................................16
-i-
{PAGE}
6.3 Payment.....................................................16
6.4 Withholding.................................................16
6.5 In Kind Distributions.......................................16
6.6 Distribution Limitation.....................................16
ARTICLE 7: MANAGING DIRECTORS................................................16
7.1 Annual Meeting..............................................16
7.2 Special Meetings............................................17
7.3 Place.......................................................17
7.4 Notice......................................................17
7.5 Waiver of Notice............................................17
7.6 Meetings by Telephone.......................................17
7.7 Action Without a Meeting....................................17
7.8 Certain Conflicts...........................................17
7.9 Resolution of Disagreements.................................17
7.10 Termination of Voting Arrangements..........................18
ARTICLE 8: LIABILITY OF MEMBERS..............................................18
8.1 Limited Liability...........................................18
8.2 Capital Contribution........................................18
ARTICLE 9: Intentionally Omitted.............................................18
ARTICLE 10: ACCOUNTING AND REPORTING..........................................19
10.1 Fiscal Year.................................................19
10.2 Accounting Method...........................................19
10.3 Tax Returns.................................................19
10.4 Reports.....................................................19
10.5 Banking.....................................................19
ARTICLE 11: TRANSFER RESTRICTIONS.............................................19
11.1 General Restriction.........................................19
11.2 No Member Rights............................................19
11.3 Permitted Transferees.......................................20
11.4 Rights of First Refusal.....................................20
11.5 Change in Control of a Shareholder Group....................22
11.6 General Conditions on Transfers.............................22
11.7 Rights of Transferees.......................................23
11.8 Admission...................................................23
11.9 Satisfaction of Legal Requirements..........................24
11.10 Closing.....................................................24
11.11 Events of Withdrawal........................................24
11.12 Covenant Relating to Rule 9 of City Code....................24
ARTICLE 12: DISSOLUTION OF THE COMPANY........................................25
12.1 Dissolution.................................................25
-ii-
{PAGE}
12.2 Exclusive Means of Dissolution..............................25
ARTICLE 13: LIQUIDATION.......................................................25
13.1 Liquidation.................................................25
13.2 Priority of Payment.........................................26
13.3 Distribution to Members.....................................26
13.4 Deficit Capital Account.....................................26
13.5 Liquidating Reports.........................................27
13.6 Articles of Dissolution.....................................27
ARTICLE 14: GENERAL PROVISIONS................................................27
14.1 Amendment...................................................27
14.2 Unregistered Interests......................................27
14.3 Reliance....................................................27
14.4 Equitable Relief............................................28
14.5 Specific Performance........................................28
14.6 Counterparts................................................28
14.7 Notices.....................................................28
14.8 Deemed Notice...............................................28
14.9 Waivers Generally...........................................28
14.10 Partial Invalidity..........................................28
14.11 Entire Agreement............................................29
14.12 No Third Party Benefit......................................29
14.13 Binding Effect..............................................29
14.14 Further Assurances..........................................29
14.15 Headings....................................................29
14.16 Terms.......................................................29
14.17 Governing Law...............................................29
14.18 Restrictive Trade Practices Act.............................29
-iii-
{PAGE}
2000 AMENDED AND RESTATED
OPERATING AGREEMENT
OF
TW HOLDINGS, L.L.C.
This 2000 AMENDED AND RESTATED OPERATING AGREEMENT is made as of July 7, 2000 by
the members of TW HOLDINGS, L.L.C., a Colorado limited liability company (the
"Company").
RECITALS
WHEREAS, Liberty UK, Inc., formerly named United Artists
Programming-Europe, Inc., MediaOne UK Cable, Inc., formerly named U S WEST UK
Cable, Inc. ("MediaOne UK"), and MediaOne Cable Partnership Holdings, Inc.,
formerly named U S WEST Cable Partnership Holdings, Inc. ("MediaOne Cable"), the
members of the Company (collectively, the "Members"), entered into an Operating
Agreement for the Company dated as of June 16, 1995 (the "Original Agreement");
WHEREAS, in September 1998 the Members made cash contributions to the
Company to fund the purchase by the Company of additional ordinary shares of
Telewest Communications plc ("Telewest"), purchased additional ordinary shares
of Telewest, the beneficial interests in which they contributed to the Company,
and entered into an Amended and Restated Operating Agreement dated as of
September 11, 1998 (the "Amended Agreement");
WHEREAS, immediately prior to the effectiveness of this amendment and
restatement, MediaOne Cable (renamed Microsoft Cable Partnership Holdings, Inc.)
and MediaOne UK (renamed Microsoft UK Cable, Inc.) became wholly owned indirect
subsidiaries of Microsoft Corporation pursuant to a Merger Agreement, dated
October 4, 1999, as amended (the "Microsoft/MediaOne Merger Agreement"), between
Microsoft Corporation, MediaOne UK, MediaOne Cable, MediaOne Group, Inc. and the
other parties thereto;
WHEREAS, Microsoft Corporation has entered into a Revised New
Relationship Agreement dated as of March 3, 2000 with Liberty UK, Inc., Liberty
UK Holdings, Inc., Liberty Media International, Inc. and Telewest, which became
effective upon the occurrence of certain conditions, including the merging of
subsidiaries of Microsoft with MediaOne UK and MediaOne Cable pursuant to the
Microsoft/MediaOne Merger Agreement; and
WHEREAS, the Members have determined that it is in their best interests
to amend and restate the Amended Agreement as set forth herein.
{PAGE}
NOW, THEREFORE, in consideration of their mutual promises, the Members
agree as follows:
ARTICLE 1: FORMATION AND DEFINITIONS
1.1 FORMATION. The Company was formed on June 16, 1995 by filing Articles with
the Colorado Secretary of State pursuant to the Act.
1.2 COMPANY NAME. The business of the Company will be conducted under the name
"TW Holdings, L.L.C." or any other name determined from time to time by the
Board in accordance with applicable law.
1.3 OFFICE AND AGENT. The registered office of the Company in Colorado is at
1560 Broadway, Suite 2090, Denver, Colorado 80202, and its registered agent is
The Prentice-Hall Corporation System, Inc. The Company may subsequently change
its registered office or registered agent in Colorado in accordance with the
Act.
1.4 FOREIGN QUALIFICATION. The Company will apply for a certificate of authority
to do business in any other jurisdiction where such authority is required.
1.5 TERM. The Company began on the date its Articles were filed with the
Colorado Secretary of State and will continue until its Dissolution.
1.6 DEFINITIONS. The following capitalized terms, when used in this Agreement,
have the meanings set forth below:
Act: the Colorado Limited Liability Company Act, as
amended from time to time.
Additional Contribution: a capital contribution (other than the Initial
Contributions) that a Member makes to the
Company, as described in Section 4.4.
Affiliate: with respect to any Person, any other Person
directly or indirectly Controlling, directly or
indirectly Controlled by or under direct or
indirect common Control with such Person.
Agreement: this 2000 Amended and Restated Operating
Agreement, as amended from time to time.
Articles: the articles of organization of the Company filed
under the Act, as amended from time to time.
Bankruptcy: of a Member will be deemed to occur when such
Member [a] files a voluntary petition in
bankruptcy,
-2-
{PAGE}
[b] is adjudged bankrupt or insolvent or has
entered against such Member an order for relief
in any bankruptcy or insolvency proceeding, [c]
files a petition or answer seeking for such
Member any reorganization, arrangement,
composition, readjustment, liquidation,
dissolution or similar relief under any statute,
law or regulation, [d] files an answer or other
pleading admitting or failing to contest the
material allegations of a petition filed against
such Member in any proceeding of that nature or
[e] seeks, consents to or acquiesces in the
appointment of a trustee, receiver or liquidator
of all or any substantial part of such Member's
property.
Board: as defined in Section 3.2.
Capital Account: the book capital account to be established and
maintained for each Member in accordance with
this Agreement.
Capital Contribution: any contribution by a Member to the Company
which is either an Initial Contribution or an
Additional Contribution.
Change in Control: [a] with respect to the Microsoft Shareholder
Group, the acquisition (whether by merger,
consolidation, sale, assignment, lease, transfer
or otherwise, in one transaction or any related
series of transactions) of beneficial ownership
of equity interests in Microsoft or any of its
Affiliates by any Person (except pursuant to a
distribution in specie, spinoff, share dividend,
demerger or similar transaction and other than
any acquisition of beneficial ownership by
Microsoft or any of its affiliates) as a result
of which such Person has the power, directly or
indirectly, to direct the voting and disposition
of Shares held by Microsoft and its Affiliates
representing least 15 percent of the outstanding
Shares of Telewest; provided that any change in
the Control of Microsoft will not be deemed a
Change in Control for purposes of this Agreement;
and
[b] with respect to the Liberty Shareholder
Group, the acquisition (whether by merger,
consolidation,
-3-
{PAGE}
sale, assignment, lease, transfer or otherwise,
in one transaction or any related series of
transactions) of beneficial ownership of equity
interests in Liberty International or any of its
Affiliates by any Person (except pursuant to a
distribution in specie, spinoff, share dividend,
demerger or similar transaction and other than
any acquisition of beneficial ownership by
Liberty International or any of its Affiliates)
as a result of which such Person has the power,
directly or indirectly, to direct the voting and
disposition of Shares held by Liberty
International and its Affiliates representing at
least 15 percent of the outstanding Shares of
Telewest, provided that any change in the Control
of AT&T Corp., TCI, Liberty Media Corporation or
Liberty International will not be deemed a Change
in Control for purposes of this Agreement.
A Change in Control will be deemed voluntary if
it is the result of a transaction agreed to by
Liberty International or any of its Affiliates or
Microsoft or any of its Affiliates, as the case
may be. A Change in Control will be deemed
involuntary if it is the result of actions by
Persons other than Liberty International or any
of its Affiliates or Microsoft or any of its
Affiliates, as the case may be, taken without the
agreement or consent of Liberty International or
any of its Affiliates or of Microsoft or any of
its Affiliates, as the case may be.
Closing Price: [a] with respect to Ordinary Shares to be offered
on the London Stock Exchange, will be the sale
price which appears on the relevant Reuters
Screen No. for Telewest as of 11:00 a.m. (London
time) on a Trading Day, provided that if such
Ordinary Shares do not appear on such Reuters
Screen or such Reuters Screen is temporarily
unavailable, the sale price with respect to the
Ordinary Shares will be the last reported sale
price which appears in the Official List of the
London Stock Exchange on a Trading Day and [b]
with respect to Ordinary Shares to be offered on
the New York Stock Exchange or another U.S.
national securities exchange in the form of ADSs,
will be the last reported sale price on a Trading
Day on such exchange or, if no such sale takes
335424
|
AT&T
As referenced in this Operating Agreement [Amended and Restated 2000]:
AT&T Corp. – International and its Affiliates representing at
least 15 percent of the outstanding Shares of
Telewest, provided that any change in the Control
of AT&T Corp. , TCI, Liberty Media Corporation or
Liberty International will not be deemed a Change
in Control for purposes of this Agreement.
A Change
_____________
dt 705416
;
LMI
As referenced in this Operating Agreement [Amended and Restated 2000]:
Liberty Media International, Inc – Corporation has entered into a Revised New
Relationship Agreement dated as of March 3, 2000 with Liberty UK, Inc., Liberty
UK Holdings, Inc., Liberty Media International, Inc . and Telewest, which became
effective upon the occurrence of certain conditions, including the merging of
subsidiaries of Microsoft with MediaOne UK and
_____________
Liberty Media International, Inc – made by each
Member to the Company, as set forth on EXHIBIT A.
Liberty Directors: as defined in Section 3.2.
Liberty International: Liberty Media International, Inc ., a Delaware
corporation, and its successors, whether by
merger or otherwise.
Liberty Shareholders: Liberty UK, Inc., formerly named United Artists
Programming - Europe,
_____________
Liberty Media
International, Inc – Group
of which the transferor is a member.
Relationship Agreement: the Revised New Relationship Agreement dated as
of March 3, 2000 among Telewest, Liberty Media
International, Inc ., the Liberty Shareholders and
Microsoft.
Shareholder: each Liberty Shareholder, each Microsoft
Shareholder and any other Person who acquires
Shares in accordance with
_____________
dt 707729
;
|
TeleWest
As referenced in this Operating Agreement [Amended and Restated 2000]:
Telewest Communications plc – in September 1998 the Members made cash contributions to the
Company to fund the purchase by the Company of additional ordinary shares of
Telewest Communications plc ("Telewest"), purchased additional ordinary shares
of Telewest, the beneficial interests in which they contributed to the Company,
and entered into an Amended
_____________
Telewest Communications plc, – share exchange, recapitalization,
scheme of arrangement or other similar
transaction).
TCI: AT&T Broadband LLC, formerly Tele-Communications,
Inc., a Delaware corporation.
Telewest: Telewest Communications plc, a public limited
company organized under the laws of England and
Wales, and its successors and assigns, whether by
merger, scheme of
_____________
dt 651799
|
Preview
Full Doc
| 2000 |
Operating Agreement [Amended and Restated 2000]
Operating Agreement [Amended and Restated 2000] (102K)
Doc #335430: Click preview link for longer preview.
2000 AMENDED AND RESTATED
OPERATING AGREEMENT
OF
TW HOLDINGS, L.L.C.
-i-
{PAGE}
TABLE OF CONTENTS
Page
ARTICLE 1: FORMATION AND DEFINITIONS......................................2
1.1 Formation....................................................2
1.2 Company Name.................................................2
1.3 Office and Agent.............................................2
1.4 Foreign Qualification........................................2
1.5 Term.........................................................2
1.6 Definitions..................................................2
ARTICLE 2: PURPOSES AND POWERS.............................................10
2.1 Purpose.....................................................10
2.2 Powers......................................................10
ARTICLE 3: MEMBERS; MANAGEMENT; VOTING.....................................11
3.1 Admission of Transferees as Members.........................11
3.2 Managing Directors..........................................12
3.3 Board Vote..................................................12
3.4 Unanimous Vote..............................................12
3.5 Expense Reimbursement; Indemnification......................12
3.6 No Resignation or Retirement................................13
ARTICLE 4: CAPITAL AND CAPITAL ACCOUNTS..................................13
4.1 Maintenance.................................................13
4.2 Revaluation.................................................14
4.3 Contributions; Ownership Interests..........................14
4.4 Additional Contributions....................................14
4.5 No Withdrawal of Capital....................................15
4.6 No Interest on Capital......................................15
4.7 No Drawing Accounts.........................................15
4.8 Transfers of Capital Accounts...............................15
ARTICLE 5: ALLOCATION OF PROFITS AND LOSSES............................15
5.1 Profits and Losses..........................................15
5.2 General Allocation Rule.....................................15
5.3 Exception...................................................16
5.4 Tax Allocations.............................................16
5.5 Transfer....................................................16
5.6 Contributed and Revalued Property...........................16
5.7 Tax Credits.................................................17
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{PAGE}
ARTICLE 6: DISTRIBUTIONS...................................................17
6.1 Net Cash....................................................17
6.2 Liquidating Distributions...................................17
6.3 Payment.....................................................18
6.4 Withholding.................................................18
6.5 In Kind Distributions.......................................18
6.6 Distribution Limitation.....................................18
ARTICLE 7: MANAGING DIRECTORS..............................................18
7.1 Annual Meeting..............................................18
7.2 Special Meetings............................................19
7.3 Place.......................................................19
7.4 Notice......................................................19
7.5 Waiver of Notice............................................19
7.6 Meetings by Telephone.......................................19
7.7 Action Without a Meeting....................................19
7.8 Certain Conflicts...........................................19
7.9 Resolution of Disagreements.................................20
7.10 Termination of Voting Arrangements..........................20
ARTICLE 8: LIABILITY OF MEMBERS..........................................20
8.1 Limited Liability...........................................20
8.2 Capital Contribution........................................20
ARTICLE 9: Intentionally Omitted...........................................21
ARTICLE 10: ACCOUNTING AND REPORTING.....................................21
10.1 Fiscal Year.................................................21
10.2 Accounting Method...........................................21
10.3 Tax Returns.................................................21
10.4 Reports.....................................................21
10.5 Banking.....................................................21
ARTICLE 11: TRANSFER RESTRICTIONS..........................................21
11.1 General Restriction.........................................22
11.2 No Member Rights............................................22
11.3 Permitted Transferees.......................................22
11.4 Rights of First Refusal.....................................22
11.5 Change in Control of a Shareholder Group....................24
11.6 General Conditions on Transfers.............................25
11.7 Rights of Transferees.......................................26
11.8 Admission...................................................26
-iii-
{PAGE}
11.9 Satisfaction of Legal Requirements..........................26
11.10 Closing.....................................................27
11.11 Events of Withdrawal........................................27
11.12 Obligation to Contribute Additional Shares to Company.......27
11.13 Covenant Relating to Rule 9 of City Code....................27
ARTICLE 12: DISSOLUTION OF THE COMPANY..................................28
12.1 Dissolution.................................................28
12.2 Exclusive Means of Dissolution..............................28
ARTICLE 13: LIQUIDATION....................................................28
13.1 Liquidation.................................................28
13.2 Priority of Payment.........................................29
13.3 Distribution to Members.....................................29
13.4 Deficit Capital Account.....................................30
13.5 Liquidating Reports.........................................30
13.6 Articles of Dissolution.....................................30
ARTICLE 14: GENERAL PROVISIONS............................................30
14.1 Amendment...................................................30
14.2 Unregistered Interests......................................31
14.3 Reliance....................................................31
14.4 Equitable Relief............................................31
14.5 Specific Performance........................................31
14.6 Counterparts................................................32
14.7 Notices.....................................................32
14.8 Deemed Notice...............................................32
14.9 Waivers Generally...........................................32
14.10 Partial Invalidity..........................................32
14.11 Entire Agreement............................................32
14.12 No Third Party Benefit......................................33
14.13 Binding Effect..............................................33
14.14 Further Assurances..........................................33
14.15 Headings....................................................33
14.16 Terms.......................................................33
14.17 Governing Law...............................................33
14.18 Restrictive Trade Practices Act.............................33
-iv-
{PAGE}
2000 AMENDED AND RESTATED
OPERATING AGREEMENT
OF
TW HOLDINGS, L.L.C.
This 2000 AMENDED AND RESTATED OPERATING AGREEMENT is made as of July 7, 2000 by
the members of TW HOLDINGS, L.L.C., a Colorado limited liability company (the
"Company").
RECITALS
WHEREAS, Liberty UK, Inc., formerly named United Artists
Programming-Europe, Inc., MediaOne UK Cable, Inc., formerly named U S WEST UK
Cable, Inc. ("MediaOne UK"), and MediaOne Cable Partnership Holdings, Inc.,
formerly named U S WEST Cable Partnership Holdings, Inc. ("MediaOne Cable"), the
members of the Company (collectively, the "Members"), entered into an Operating
Agreement for the Company dated as of June 16, 1995 (the "Original Agreement");
WHEREAS, in September 1998 the Members made cash contributions to the
Company to fund the purchase by the Company of additional ordinary shares of
Telewest Communications plc ("Telewest"), purchased additional ordinary shares
of Telewest, the beneficial interests in which they contributed to the Company,
and entered into an Amended and Restated Operating Agreement dated as of
September 11, 1998 (the "Amended Agreement");
WHEREAS, on July 7, 2000 MediaOne Cable (renamed Microsoft Cable
Partnership Holdings, Inc.) and MediaOne UK (renamed Microsoft UK Cable, Inc.)
became wholly owned indirect subsidiaries of Microsoft Corporation pursuant to a
Merger Agreement, dated October 4, 1999, as amended (the "Microsoft/MediaOne
Merger Agreement"), between Microsoft Corporation, MediaOne UK, MediaOne Cable,
MediaOne Group, Inc. and the other parties thereto;
WHEREAS, Microsoft Corporation has entered into a Revised New
Relationship Agreement dated as of March 3, 2000 with Liberty UK Inc., Liberty
UK Holdings, Inc., Liberty Media International, Inc. and Telewest, which became
effective upon the occurrence of certain conditions, including the merging of
subsidiaries of Microsoft with MediaOne UK and MediaOne Cable pursuant to the
Microsoft/MediaOne Merger Agreement; and
- 1 -
{PAGE}
WHEREAS, the Members have determined that it is in their best interests
to amend and restate the Amended Agreement as set forth herein.
NOW, THEREFORE, in consideration of their mutual promises, the Members
agree as follows:
ARTICLE 1: FORMATION AND DEFINITIONS
1.1 FORMATION. The Company was formed on June 16, 1995 by filing Articles with
the Colorado Secretary of State pursuant to the Act.
1.2 COMPANY NAME. The business of the Company will be conducted under the name
"TW Holdings, L.L.C." or any other name determined from time to time by the
Board in accordance with applicable law.
1.3 OFFICE AND AGENT. The registered office of the Company in Colorado is at
1560 Broadway, Suite 2090, Denver, Colorado 80202, and its registered agent is
The Prentice-Hall Corporation System, Inc. The Company may subsequently change
its registered office or registered agent in Colorado in accordance with the
Act.
1.4 FOREIGN QUALIFICATION. The Company will apply for a certificate of authority
to do business in any other jurisdiction where such authority is required.
1.5 TERM. The Company began on the date its Articles were filed with the
Colorado Secretary of State and will continue until its Dissolution.
1.6 DEFINITIONS. The following capitalized terms, when used in this Agreement,
have the meanings set forth below:
Act: the Colorado Limited Liability Company Act, as
amended from time to time.
Additional Contribution: a capital contribution (other than the Initial
Contributions) that a Member makes to the Company,
as described in Section 4.4.
Affiliate: with respect to any Person, any other Person
directly or indirectly Controlling, directly or
indirectly Controlled by or under direct or
indirect common Control with such Person.
- 2 -
{PAGE}
Agreement: this 2000 Amended and Restated Operating
Agreement, as amended from time to time.
Articles: the articles of organization of the Company filed
under the Act, as amended from time to time.
Bankruptcy: of a Member will be deemed to occur when such
Member [a] files a voluntary petition in
bankruptcy, [b] is adjudged bankrupt or insolvent
or has entered against such Member an order for
relief in any bankruptcy or insolvency proceeding,
[c] files a petition or answer seeking for such
Member any reorganization, arrangement,
composition, readjustment, liquidation,
dissolution or similar relief under any statute,
law or regulation, [d] files an answer or other
pleading admitting or failing to contest the
material allegations of a petition filed against
such Member in any proceeding of that nature or
[e] seeks, consents to or acquiesces in the
appointment of a trustee, receiver or liquidator
of all or any substantial part of such Member's
property.
Board: as defined in Section 3.2.
Capital Account: the book capital account to be established and
maintained for each Member in accordance with this
Agreement.
Capital Contribution: any contribution by a Member to the Company which
is either an Initial Contribution or an Additional
Contribution.
Change in Control: [a] with respect to the Microsoft Shareholder
Group, the acquisition (whether by merger,
consolidation, sale, assignment, lease, transfer
or otherwise, in one transaction or any related
series of transactions) of beneficial ownership of
equity interests in Microsoft or any of its
Affiliates by any Person (except pursuant to a
distribution in specie, spinoff, share dividend,
demerger or similar transaction and other than any
acquisition of beneficial ownership by Microsoft
or
- 3 -
{PAGE}
any of its Affiliates) as a result of which such
Person has the power, directly or indirectly, to
direct the voting and disposition of Shares held
by Microsoft and its Affiliates representing at
least 15 percent of the outstanding Shares of
Telewest; provided that any change in the Control
of Microsoft will not be deemed a Change in
Control for purposes of this Agreement; and
[b] with respect to the Liberty Shareholder Group,
the acquisition (whether by merger, consolidation,
sale, assignment, lease, transfer or otherwise, in
one transaction or any related series of
transactions) of beneficial ownership of equity
interests in Liberty International or any of its
Affiliates by any Person (except pursuant to a
distribution in specie, spinoff, share dividend,
demerger or similar transaction and other than any
acquisition of beneficial ownership by Liberty
International or any of its Affiliates) as a
result of which such Person has the power,
directly or indirectly, to direct the voting and
disposition of Shares held by Liberty
International and its Affiliates representing at
least 15 percent of the outstanding Shares of
Telewest, provided that any change in the Control
of AT&T Corp., TCI, Liberty Media Corporation or
Liberty International will not be deemed a Change
in Control for purposes of this Agreement.
A Change in Control will be deemed voluntary if it
is the result of a transaction agreed to by
Liberty International or any of its Affiliates or
Microsoft or any of its Affiliates, as the case
may be. A Change in Control will be deemed
involuntary if it is the result of actions by
Persons other than Liberty International or any of
its Affiliates or Microsoft or any of its
Affiliates, as the case may be, taken without the
agreement or consent of Liberty International or
any of its Affiliates or of Microsoft or any of
its Affiliates, as the case may be.
- 4 -
{PAGE}
Closing Price: [a] with respect to Ordinary Shares to be offered
on the London Stock Exchange, will be the sale
price which appears on the relevant Reuters Screen
No. for Telewest as of 11:00 a.m. (London time) on
a Trading Day, provided that if such Ordinary
Shares do not appear on such Reuters Screen or
such Reuters Screen is temporarily unavailable,
the sale price with respect to the Ordinary Shares
will be the last reported sale price which appears
in the Official List of the London Stock Exchange
on a Trading Day and [b] with respect to Ordinary
Shares to be offered on the New York Stock
Exchange or another U.S. national securities
exchange in the form of ADSs, will be the last
reported sale price on a Trading Day on such
335430
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AT&T
As referenced in this Operating Agreement [Amended and Restated 2000]:
AT&T Corp. – International and its Affiliates representing at
least 15 percent of the outstanding Shares of
Telewest, provided that any change in the Control
of AT&T Corp. , TCI, Liberty Media Corporation or
Liberty International will not be deemed a Change
in Control for purposes of this Agreement.
A Change
_____________
dt 705417
;
LMI
As referenced in this Operating Agreement [Amended and Restated 2000]:
Liberty Media International, Inc – Corporation has entered into a Revised New
Relationship Agreement dated as of March 3, 2000 with Liberty UK Inc., Liberty
UK Holdings, Inc., Liberty Media International, Inc . and Telewest, which became
effective upon the occurrence of certain conditions, including the merging of
subsidiaries of Microsoft with MediaOne UK and
_____________
Liberty Media International, Inc – made by each
Member to the Company, as set forth on EXHIBIT A.
Liberty Directors: as defined in Section 3.2.
Liberty International: Liberty Media International, Inc ., a Delaware
company, and its successors, whether by merger or
otherwise.
Liberty Shareholders: Liberty UK, Inc., formerly named United Artists
Programming - Europe,
_____________
Liberty Media
International, Inc – Group
of which the transferor is a member.
Relationship Agreement: the Revised New Relationship Agreement dated as of
March 3, 2000 among Telewest, Liberty Media
International, Inc ., the Liberty Shareholders and
Microsoft.
Shareholder: each Liberty Shareholder, each Microsoft
Shareholder and any other Person who acquires
Shares in accordance with
_____________
dt 707731
;
|
TeleWest
As referenced in this Operating Agreement [Amended and Restated 2000]:
Telewest Communications plc – in September 1998 the Members made cash contributions to the
Company to fund the purchase by the Company of additional ordinary shares of
Telewest Communications plc ("Telewest"), purchased additional ordinary shares
of Telewest, the beneficial interests in which they contributed to the Company,
and entered into an Amended
_____________
Telewest Communications plc, – share exchange, recapitalization,
scheme of arrangement or other similar
transaction).
TCI: AT&T Broadband LLC, formerly Tele-Communications,
Inc., a Delaware corporation.
Telewest: Telewest Communications plc, a public limited
company organized under the laws of England and
Wales, and its successors and assigns, whether by
merger, scheme of
_____________
dt 651803
|
Preview
Full Doc
| 2004 |
Operating Agreement
Operating Agreement (35K)
Doc #339182: Click preview link for longer preview.
OPERATING AGREEMENT
This OPERATING AGREEMENT (�Agreement�) is dated as of April 13, 2004 by Allegiance Telecom, Inc. and its subsidiaries listed as Sellers on the signature page hereto (collectively, �Sellers�), and XO Communications, Inc., a Delaware corporation or its designee (�Manager�)..
WHEREAS, the Sellers and the Manager are parties to an Asset Purchase Agreement dated as of February 18, 2004 (the �Asset Purchase Agreement�) whereby Manager has agreed to purchase the Acquired Assets, consisting of the Early Funding Date Assets and the Non-Transferred Assets, . . .
339182
|
Allegiance
As referenced in this Operating Agreement:
Allegiance Telecom, Inc – htm EX-10.3
Exhibit 10.3
EXECUTION COPY
OPERATING AGREEMENT
This OPERATING AGREEMENT (Agreement) is dated as of April 13, 2004 by Allegiance Telecom, Inc . and its subsidiaries listed as Sellers on the signature page hereto (collectively, Sellers), and XO Communications, Inc., a Delaware corporation or its
_____________
Allegiance Telecom, Inc – return receipt requested (such mailed notice to be effective on the date such receipt is acknowledged), as follows:
If to Sellers:
c/o Allegiance Telecom, Inc .
700 E. Butterfield Road, Suite 400
Lombard, IL 60148
Attention:
Mark B. Tresnowski, Esq.
Executive Vice President, General Counsel and
Secretary
Fax: (
_____________
ALLEGIANCE TELECOM, INC – has been duly executed and delivered by the duly authorized officers of Sellers and Buyer as of the date first above written.
SELLERS:
ALLEGIANCE TELECOM, INC .
By:
Name:
Title:
ALLEGIANCE TELECOM COMPANY WORLDWIDE
ADGRAFIX CORPORATION
ALGX BUSINESS INTERNET, INC.
ALLEGIANCE INTERNET, INC.
ALLEGIANCE TELECOM INTERNATIONAL, INC.
ALLEGIANCE TELECOM
_____________
dt 705806
;
XO
As referenced in this Operating Agreement:
XO Communications, Inc – as of April 13, 2004 by Allegiance Telecom, Inc. and its subsidiaries listed as Sellers on the signature page hereto (collectively, Sellers), and XO Communications, Inc ., a Delaware corporation or its designee (Manager)..
WHEREAS, the Sellers and the Manager are parties to an Asset Purchase Agreement dated as
_____________
XO Communications, Inc – LLP
3000 K Street, NW, Suite 300
Washington, DC 20007
Attention:
Jean L. Kiddoo, Esq.
9
Fax: (202) 424-7645
If to Manager:
XO Communications, Inc .
11111 Sunset Hills Road
Reston, Virginia 20190
Attention:
General Counsel
Fax:
(703) 547-2025
With a copy to (which shall not constitute
_____________
XO COMMUNICATIONS, INC – SERVICE CORPORATION
COAST TO COAST TELECOMMUNICATIONS, INC.
HOSTING.COM, INC.
INTERACCESS TELECOMMUNICATIONS CO.
JUMP.NET, INC.
VIRTUALIS SYSTEMS, INC.
By:
Name:
Title:
MANAGER:
XO COMMUNICATIONS, INC .
By:
Name:
Title:
_____________
dt 707093
;
|
Kelley Drye
As referenced in this Operating Agreement:
Kelley Drye – 120 West 45th Street
New York, NY 10036
Attention:
Edward S. Weisfelner
Steven D. Pohl
Fax:
(212) 704-0196
(617) 856-8201
And
Kelley Drye & Warren, LLP
1200 19th Street, NW, Suite 500
Washington, DC 20036-2423
Attention: Brad E. Mutschelknaus
Fax: (202) 955-9792
or
_____________
dt 701272
;
Swidler Berlin
As referenced in this Operating Agreement:
Swidler Berlin Shereff Friedman – amp; Ellis LLP
153 East 53rd
New York, NY 10022
Attention:
Jonathan S. Henes, Esq.
Michael Movsovich, Esq.
Fax: (212) 446-4900
and
Swidler Berlin Shereff Friedman LLP
3000 K Street, NW, Suite 300
Washington, DC 20007
Attention:
Jean L. Kiddoo, Esq.
9
Fax: (202) 424-7645
If to
_____________
dt 700186
|
Preview
Full Doc
| 2004 |
Operating Agreement
Operating Agreement (192K)
Doc #340722: Click preview link for longer preview.
OPERATING AGREEMENT
of
CINCINNATI BELL WIRELESS, LLC
between
AT&T WIRELESS PCS INC.
and
CINCINNATI BELL WIRELESS COMPANY
Dated as of December 31, 1998
--------------------------------------------------------------------------------
OPERATING AGREEMENT OF
. . .
340722
|
AT&T
As referenced in this Operating Agreement:
AT&T Corp. – Effective
Date"), by and between AT&T Wireless PCS Inc., a Delaware corporation ("AT&T
PCS"), and an indirect wholly owned subsidiary of AT&T Corp. , a New York
corporation ("AT&T"), and Cincinnati Bell Wireless Company, an Ohio corporation
("CBW"), and a wholly owned subsidiary of Cincinnati
_____________
AT&T Corp. – Cincinnati Bell Inc. on April
1, 1998; and the following other agreements (entered into by any two or more of
the following parties: AT&T Corp. , AT&T Wireless PCS Inc., AT&T Wireless
Services,
12
{PAGE}
Inc., Cincinnati Bell Inc., Cincinnati Bell Wireless Company and/or Cincinnati
_____________
AT&T Corp. – the TDMA Quality Standards.
(f) Interexchange Services. The Company shall not market, offer,
provide or resell interexchange services, except interexchange services procured
from AT&T Corp. , or an Affiliate thereof designated by AT&T Corp. The rates,
terms and conditions provided by AT&T Corp. shall be in
_____________
AT&T Corp. – shall not market, offer,
provide or resell interexchange services, except interexchange services procured
from AT&T Corp., or an Affiliate thereof designated by AT&T Corp. The rates,
terms and conditions provided by AT&T Corp. shall be in the aggregate at least
as favorable to the Company
_____________
AT&T Corp. – interexchange services procured
from AT&T Corp., or an Affiliate thereof designated by AT&T Corp. The rates,
terms and conditions provided by AT&T Corp. shall be in the aggregate at least
as favorable to the Company as those provided by AT&T Corp. to any other
_____________
dt 705469
;
AT&T Wireless
As referenced in this Operating Agreement:
AT&T Wireless Services, Inc – of AT&T PCS or its
Affiliates. Such liabilities include three promissory notes, each of which were
issued by AT&T PCS to AT&T Wireless Services, Inc . and are being assumed by the
Company, bear interest at the rate of 10% per annum from and after February 2,
1998,
_____________
AT&T Wireless Services, Inc – Tier Executive.") The
Second-Tier Executive of each Member Group is as follows:
37
{PAGE}
AT&T PCS Chief Financial Officer,
Member Group: AT&T Wireless Services, Inc .
CBW Chief Financial Officer
Member Group: Kevin W. Mooney
(d) Each Member Group shall also designate an individual, who shall be
an
_____________
AT&T Wireless Services, Inc – herein as the
"Third-Tier Executive.") The Third-Tier Executive of each Member Group is as
follows:
AT&T PCS President,
Member Group: AT&T Wireless Services, Inc .
CBW Chief Operating Officer
Member Group: Richard G. Ellenberger
(e) Each Member Group shall at all times maintain a First-Tier
Executive,
_____________
AT&T Wireless Services, Inc – 513) 721-7358
If to a Member or Representative of the AT&T PCS Member Group, to such Member or
Representative:
c/o AT&T Wireless Services, Inc .
5000 Carillon Point
Kirkland, WA 98033
Attn: William Hague, Esq.
Fax: (425) 828-8451
with a copy to:
59
{PAGE}
AT&T
_____________
AT&T Wireless Services, Inc – Wireless Services, Inc.
5000 Carillon Point
Kirkland, WA 98033
Attn: William Hague, Esq.
Fax: (425) 828-8451
with a copy to:
59
{PAGE}
AT&T Wireless Services, Inc .
5000 Carillon Point
Kirkland, WA 98033
Attn: General Counsel
Fax: (425) 828-8451
10.9 Governing Law. This Agreement shall be governed
_____________
dt 706285
;
|
Cincinnati Bell
As referenced in this Operating Agreement:
Cincinnati Bell Inc – T Corp., a New York
corporation ("AT&T"), and Cincinnati Bell Wireless Company, an Ohio corporation
("CBW"), and a wholly owned subsidiary of Cincinnati Bell Inc ., an Ohio
corporation ("CBI").
WHEREAS, AT&T and CBI have a long standing business relationship
covering the provision of various goods and
_____________
Cincinnati Bell Inc – AT&T Wireless
PCS Inc., and Cincinnati Bell Wireless Company, on February 2, 1998; and the
Cellular Business Interest Trust entered into by Cincinnati Bell Inc . on April
1, 1998; and the following other agreements (entered into by any two or more of
the following parties: AT&T
_____________
Cincinnati Bell Inc – any two or more of
the following parties: AT&T Corp., AT&T Wireless PCS Inc., AT&T Wireless
Services,
12
{PAGE}
Inc., Cincinnati Bell Inc ., Cincinnati Bell Wireless Company and/or Cincinnati
Bell Wireless, LLC) and known as either the Assignment and Assumption Agreement,
the CBI Service
_____________
Cincinnati Bell Inc – Bell Wireless Company
221 E. Fourth Street, 103-1610
Cincinnati, OH 45201
Attn: Jack Cassidy
Fax: 513-651-4159
with a copy to:
Cincinnati Bell Inc .
201 E. Fourth Street, 102-715
Cincinnati, OH 45201
Attn: General Counsel
Fax: (513) 721-7358
If to a Member or Representative
_____________
CINCINNATI BELL INC – Mark U. Thomas
Title: Vice President
Agreed to for purposes of Sections 6.13, 6.14, 6.15, 6.16 and 7.5:
CINCINNATI BELL INC .
By________________________
Name:
Title:
Accepted and Agreed:
CINCINNATI BELL WIRELESS, LLC
By_________________________
Name:
Title:
62
{PAGE}
Schedule 2.2: Principal Terms of Senior
_____________
dt 693974
|