EXHIBIT 10.7
FORM OF
MASTER COMMUNICATIONS LICENSE TRANSACTION AGREEMENT
THIS MASTER COMMUNICATIONS LICENSE TRANSACTION AGREEMENT (this "Agreement")
is made this _____ day of __________________, 1999 (the "Date of this
Agreement"), by and between CYPRESS COMMUNICATIONS, INC., a Delaware corporation
having offices at Fifteen Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000
("Cypress"), and ___________________________________________, a
______________________________, having an address at
___________________________________________________________ (collectively,
"Company"). Cypress and Company are sometimes referred to in this Agreement
individually as a "Party" and collectively as the "Parties."
WHEREAS, the Parties desire to execute definitive agreements by which: (a)
Company would grant licenses to Cypress to permit Cypress to install, manage,
and operate communications infrastructures within certain commercial office
buildings owned, operated, or managed by Company or various affiliated entities,
and to provide enhanced communications services within those buildings to
tenants and other occupants thereof (the "Master Agreement"); and (b) Cypress
would grant rights and options to Company to purchase shares of outstanding
voting common stock in Cypress (the "Warrant Agreement"); and
WHEREAS, the Parties agree that, in reliance upon each of the
representations and warranties set forth in this Agreement, they will enter
into, or use reasonable efforts to cause an affiliated entity as appropriate to
enter into, a Communications License Agreement in the form of the attached
Exhibit A, or a lease on substantially identical terms as such License
---------
Agreement, at Company's election (said License Agreement and lease being
hereinafter referred to as the "License Agreement") with respect to each of the
office buildings or office building complexes the Parties identify in the
attached Exhibit B as amended from time to time in accordance with this
---------
Agreement ("Buildings List");
NOW, THEREFORE, in consideration of the mutual covenants contained in this
Agreement, the receipt and sufficiency of which the Parties hereby acknowledge,
Cypress and Company hereby covenant and agree as follows:
1. DEFINITIONS.
Terms used herein that are defined in the form License Agreement attached as
Exhibit A hereto shall have the meanings given such terms unless a different
---------
meaning is expressly provided herein. In addition, the following terms shall
have the following meanings for purposes of this Agreement:
(a) "Affiliate" shall mean and include any person or entity (i) that directly
or indirectly, through one or more intermediaries, controls, is controlled
by, or is under common control with, a Party; (ii) that beneficially owns
or holds, directly or indirectly by attribution, more than fifty percent
(50%) of any class of the outstanding voting stock or other voting
ownership interests of a Party; or (iii) more than fifty percent (50%) of
the outstanding voting stock or other voting ownership interests (or in the
case of a person or entity that is not a corporation, more
than fifty percent (50%) of the equity interest) of which is beneficially
owned or held, directly or indirectly by attribution, by a Party.
(b) "Building" or "Buildings" shall mean the applicable building(s) described
in, and that are the subject of, a License Agreement.
(c) "Diligence Period" shall mean the period commencing upon the Date of this
Agreement and ending at 5:00 p.m. on the sixtieth (60th) day thereafter.
(d) "GLA" shall mean, with respect to any Building, the gross leasable area
within such Building, as stipulated in the License Agreement with respect
to such Building.
(e) "Owner" shall mean, with respect to any Building, the person or entity
holding record or beneficial title to such Building.
(f) "Total GLA" shall mean the aggregate GLA of all Buildings.
2. REPRESENTATIONS AND WARRANTIES.
Each Party hereby represents and warrants to the other the following:
(a) Such Party has full corporate power and authority to execute and
deliver each License Agreement to which it is a party, and perform each of its
obligations related thereto; and
(b) As of the end of the Diligence Period, all consents,
authorizations, orders and approvals of (or filings or registrations with) any
governmental commission, board or other regulatory body required in connection
with the execution, delivery, and performance of each License Agreement to which
such Party is a party and the performance of the obligations related thereto
have been obtained or made.
3. BUILDINGS LIST; OPERATIONS ROLLOUT SCHEDULE.
(a) The list of commercial office buildings and commercial office
building complexes attached to this Agreement as Exhibit B sets forth (i) the
---------
buildings that are eligible to become the subject of one or more License
Agreements executed by Cypress and either Company or the Owner thereof and (ii)
the GLA for purposes of this Agreement or any License Agreement of each such
building. The Parties may amend Exhibit B from time to time to reflect the
---------
then-current identity of the Owner of such identified buildings, but no change
in GLA will be permitted without Cypress's consent, which will not be
unreasonably withheld. During the Diligence Period, Company shall have the right
and option to remove certain building(s) that are not identified by an asterisk
(*) on Exhibit B attached hereto from this Agreement and the Warrant Agreement,
---------
in accordance with Section 3(e) below, by notice to Cypress in accordance with
Section 6 below.
(b) Before the expiration of the Diligence Period, Cypress and Company
will negotiate diligently and in good faith to establish a schedule for Cypress
to install Cypress's cable, electronics, and other equipment and facilities
required to commence Cypress's operations
2
pursuant to the respective License Agreements within each of the buildings
remaining on Exhibit B after the Diligence Period. The mutually agreed schedule
---------
resulting from such negotiation shall be consistent with the schedules Cypress
agrees upon with other commercial office building owners and managers entering
into similar arrangements with Cypress during the Diligence Period and the
Parties shall thereupon amend this Agreement and cause such schedule to be
attached to this Agreement by such amendment as Exhibit C. Cypress shall not
---------
discriminate among any such commercial office building owners and managers in
the offering or completion of the terms, conditions, or operations rollout
schedules of such arrangements.
(c) From time to time in accordance with the rollout schedule attached
hereto as Exhibit C, Cypress may request of Company in writing that Cypress and
---------
Company, or, as applicable, the Affiliate or other third party Owner of the
applicable buildings, execute a License Agreement with respect to one or more
buildings listed in the then-current Exhibit B. Within thirty (30) days after
---------
Cypress makes any such written request, Cypress and Company or the Affiliate or
other third party Owner shall (i) negotiate diligently and in good faith to
establish the location of the Licensed Area in such Building(s) and (ii) execute
a separate License Agreement for each such Building or complex of Buildings in
accordance with the terms of this Agreement. Each such License Agreement shall
be substantially in the form of Exhibit A attached hereto and shall (x) identify
---------
and describe the Building and Licensed Area with respect to such License
Agreement, and (y) identify any Building-specific access or construction issues
with respect to such Building.
(d) On Exhibit B attached hereto, Company has designated the nature of the
---------
license to be granted to Cypress, on a per building basis, for each of the
buildings on Exhibit B, i.e., Exclusive, Semi-Exclusive or Non-Exclusive (as
---------
those terms are defined in the form License Agreement attached as Exhibit A).
---------
Company represents that at least 75% of Total GLA represented on Exhibit B has
---------
received the same type of designation by Company (that is, Exclusive, Semi-
Exclusive or Non-Exclusive).
(e) With respect to each building identified with an asterisk (*) on
Exhibit B attached to this Agreement on the Date of this Agreement, Company
---------
represents and warrants to Cypress that: (i) either Company or an Owner or
Affiliate designated by Company to be the licensor with respect thereto is duly
authorized to enter into a License Agreement and to grant to Cypress the rights
described therein, and (ii) for each building as to which Company designates an
Owner (other than Company) or Affiliate as the proper licensor under a License
Agreement, Company has obtained the agreement of such Owner or Affiliate that it
will enter into a License Agreement with Cypress pertaining to such building.
With respect to each building that is not identified with an asterisk, as
aforesaid, Company represents and warrants that, as of the Date of this
Agreement, Company has commenced discussions with, and solicited the approval
of, Company's partners, joint venturers, investors and Affiliates having an
interest in such building (collectively, "Partners"), or the Owners of such
building, as applicable, with respect to the proposed grant of license
contemplated in this Agreement. Moreover, during the Diligence Period, Company
covenants and agrees to undertake commercially reasonable efforts to obtain from
such Partners and Owners, as necessary, (y) written authority to execute License
Agreements for and on behalf of such Partners and Owners or (z) written
agreements with respect to such buildings which convey to Cypress the rights
described in this Agreement.
3
Company shall have the right and option to remove any building(s) from Exhibit B
---------
on or before the expiration of the Diligence Period only if such buildings are
not identified by an asterisk on Exhibit B as of the date of this Agreement and,
---------
despite Company's diligent good faith efforts, (1) the Owners or Company's
Partners having an interest in such building(s) refuse to participate in the
program contemplated in this Agreement or (2) such Owners or Partners are
prohibited from participating in such program as a matter of law or contract, or
pursuant to such Owner's or Partner's organization, authorization or governing
documents. Within fifteen (15) days after the expiration of the Diligence
Period, the Parties shall attach a finalized Exhibit B to this Agreement in
---------
accordance with any permitted withdrawal(s) by Company or Cypress during the
Diligence Period, as described above. By attaching the finalized Exhibit B to
---------
this Agreement, Company shall be deemed to have restated and reaffirmed the
foregoing representations and warranties with respect to all buildings set forth
on such finalized Exhibit B, except with respect to any building(s) for which
---------
the appropriate Owner or Partner of Company has delivered such representation
and warranty to Cypress in writing within fifteen (15) days after the expiration
of the Diligence Period.
(f) With respect to any other buildings that may be owned, managed or
controlled by Company or its Affiliates at any time during the term of this
Agreement, but which do not appear on Exhibit B, Company, Company's Affiliates
---------
and Cypress may by mutual agreement enter into License Agreements for such other
buildings; provided, however, that any such subsequent License Agreement shall
not affect the number of warrants conveyed to Company under the Warrant
Agreement (except to substitute buildings for previously-designated buildings
sold by an Owner or affiliate, to the extent and as provided in the Warrant
Agreement) or extend to Company the right to make additional purchases under the
Warrant Agreement.
4. CORPORATE SERVICES.
Subject to available space and other technical conditions, Cypress shall
provide, at no charge to Company and so long as any License Agreement between
the parties is in effect, high speed data and Internet connections (with T1 or
equivalent or greater capacity) between the Internet backbone and one (1)
corporate office of Company provided, however, that Company shall be
responsible for payment of any taxes, tariffs, user fees, or other charges that
may be imposed by any government entity or utility provider on account of
Company's access, use, or connection therewith. Subject to the foregoing, such
Services shall be provided to Company subject to and in accordance with the
terms, conditions and limitations of the mutually agreed subscription agreement
attached as Exhibit D.
---------
5. ASSIGNMENT.
Except as hereinafter expressly provided, neither this Agreement, nor the
rights, obligations or duties of either Party under this Agreement may be
assigned or delegated to any other party, person, or entity without the prior
written consent of the other Party hereto, and any attempted assignment or
delegation without such consent shall be void. Notwithstanding the foregoing,
Cypress has the right, without the consent of Company, to assign its rights,
obligations or duties under this Agreement to an Affiliate of Cypress or to any
entity in connection with a merger or
4
consolidation of Cypress under another entity or the sale of all or
substantially all of the assets of Cypress to another entity.
6. NOTICE.
All notices which may be given by either Party to the other shall be in writing
and shall be deemed to have been duly given (a) on the date of dispatch when
delivered in person, (b) one day after dispatch when sent by overnight courier,
maintaining records of receipt, and (c) on the date of dispatch when sent by
facsimile during normal business hours with telephone confirmation of receipt
(and with confirmation notice given by one of the other approved methods of
delivery within three (3) days after such facsimile transmission) and addressed
as follows:
If to Company:
Attention:
Facsimile No.:
If to Cypress:
Cypress Communications, Inc.
Fifteen Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxxxxx, Xx.
Fax No.: (000) 000-0000
7. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon the Parties and their respective successors
and permitted assigns and all references herein to a Party shall include such
successors and permitted assigns of such party.
8. AMENDMENTS.
This Agreement may be amended only by written agreement signed by authorized
representatives of the Parties. No waiver of any provisions of this Agreement
and no consent to any default under this Agreement shall be effective unless the
same shall be in writing and signed by on or on behalf of the Party against whom
such waiver or consent is claimed.
9. WAIVER.
No failure of either Party to strictly enforce any term, right, or condition of
this Agreement shall be construed as a waiver of such term, right or condition.
5
10. ANNOUNCEMENTS.
Neither Company nor Cypress shall use the name, logo, or trademarks of the other
party in any advertising, promotional material, or trade display, or for any
other commercial purpose, or issue any press release or make any written public
announcement relating to this Agreement, except where required by law or allowed
by the prior written consent of the other party; provided, that any such consent
--------
shall not be unreasonably withheld. Without limiting the generality of the
foregoing, (a) Company may in any case withhold its consent to any such press
release or public announcement relating to this Agreement if it determines that
any such press release or public announcement is likely to damage its public
reputation, goodwill, or relationships with its tenants and (b) Cypress may in
any case withhold its consent to any such press release or public announcement
relating to this Agreement if it determines that any such press release or
public announcement is likely to damage its public reputation, goodwill, or
relationships with its customers. Notwithstanding the foregoing, Cypress may
provide a copy of this Agreement to any other licensor-participant in any
program comparable to the stock warrant program contemplated hereunder (in which
Cypress has granted stock warrants in consideration for license rights),
provided that all such persons shall maintain the disclosed information in
confidence at all times thereafter.
11. SEVERABILITY.
If a court or other lawful authority of competent jurisdiction declares that any
one or more of the provisions contained in this Agreement is invalid, illegal or
unenforceable in any respect, such declaration shall not affect the validity or
enforceability of any other provision of this Agreement, but this Agreement
shall be construed as if such invalid, illegal or unenforceable provision or
provisions had never been contained in this Agreement.
12. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Delaware, without regard to its principles of conflicts of law.
The Parties hereby submit to the non-exclusive jurisdiction of the federal and
state courts of the State of Delaware with respect to any action or proceeding
that may be instituted in connection with this Agreement.
13. HEADINGS.
The headings and numbering of articles, sections and paragraphs in the Agreement
are for convenience only and shall not be construed to define or limit any of
the terms or conditions in this Agreement or affect the meaning or
interpretation of this Agreement.
14. ENTIRE AGREEMENT.
This Agreement, the Warrant Agreement, the License Agreements and the other
agreements contemplated thereby or affixed thereto, together constitute the
entire agreement between the Parties with respect to the subject matter of this
Agreement, and supersede all prior oral or written agreements, representations,
statements, negotiations, understandings, and proposals
6
relating to the subject matter of this Agreement. The stock warrants to be
issued under the Warrant Agreement shall be in addition to, and not in lieu of,
License Fees to be paid under the License Agreements.
15. COUNTERPARTS.
For the convenience of the Parties, this Agreement may be executed in several
counterparts, each of which when so executed shall be, and be deemed to be, an
original instrument and such counterparts together shall constitute one and the
same instrument (and notwithstanding their date of execution shall be deemed to
bear a date as of the date of this Agreement). This Agreement may also be
executed by facsimile, with each Party's facsimile signature being as binding on
such Party as an original signature.
[Signatures appear on the following page.]
------------------------------------------
7
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
duly executed for it and on its behalf as of the day and year first above
written.
CYPRESS COMMUNICATIONS, INC.
____________________________
Xxxx X. Xxxxxxxxx,
Executive Vice President
_____________________________
By: ______________________ Date
Signature
______________________
Printed Name
______________________
Title
__________________________________________________________________________
DATE
----
8
