EXHIBIT 99.3
AGREEMENT AND DECLARATION OF TRUST
This agreement and declaration of trust ("Agreement") is entered into as
of [date] by and among MOC Holdco II, Inc. ("Grantor"), a Delaware corporation
and an indirect wholly-owned subsidiary of AT&T Comcast Corporation ("AT&T
Comcast"), Xxxxx X. Holiday, an individual with an office in Wilmington,
Delaware, as operating trustee hereunder (the "Operating Trustee"), and The
Capital Trust Company of Delaware, a Delaware trust company, as Delaware
trustee hereunder (the "Delaware Trustee").
WHEREAS, the Agreement and Plan of Merger dated as of December 19, 2001,
as amended, among AT&T Corp. ("AT&T"), Comcast Corporation ("Comcast"), AT&T
Comcast and the other parties thereto provides for the spin-off of AT&T
Broadband Corp. ("AT&T Broadband"), a wholly-owned subsidiary of AT&T, and the
subsequent mergers of wholly-owned subsidiaries of AT&T Comcast with and into
AT&T Broadband and Comcast, respectively (such transactions, the "AT&T Comcast
Transaction");
WHEREAS, upon the closing of the AT&T Comcast Transaction (the "AT&T
Comcast Transaction Closing"), MediaOne of Colorado, Inc. ("MOC"), a Colorado
corporation, an indirect parent of Grantor and an indirect wholly-owned
subsidiary of AT&T Broadband, became an indirect wholly-owned subsidiary of
AT&T Comcast;
WHEREAS, AT&T Broadband indirectly holds partnership interests in Time
Warner Entertainment Company, L.P., a Delaware limited partnership ("TWE"),
which prior to the transactions described in the recitals below were held as
follows: (i) a partnership interest representing approximately 2.86% of the pro
rata senior priority (Series A) capital and residual equity capital of TWE (the
"MOC TWE Interest") was held by MOC; and (ii) a partnership interest
representing approximately 24.78% of the pro rata senior priority (Series A)
capital and
residual equity capital of TWE (the "MOTH TWE Interest") was held by MediaOne
TWE Holdings, Inc. ("MOTH"), a Delaware corporation and at such time a direct
wholly-owned subsidiary of MOC;
WHEREAS, TWE, AT&T, MOC, MOTH, Comcast, AT&T Comcast, AOL Time Warner
Inc. ("AOL Time Warner") and certain other parties have entered into the
Restructuring Agreement dated as of August 20, 2002 (as it may be amended, the
"Restructuring Agreement" and, together with the other Transaction Agreements,
the Engagement Letter, the Confidentiality Agreements and the Letter Agreements
(each as defined in the Restructuring Agreement), the "TWE Restructuring
Documents"), providing for the restructuring of TWE and certain related
transactions (the "TWE Restructuring");
WHEREAS, prior to the AT&T Comcast Transaction Closing: (i) MOC
contributed the MOC TWE Interest to MOC Holdco I, Inc. ("Holdco 1"), a Delaware
corporation and a wholly-owned subsidiary of MOC, and Holdco 1 succeeded to the
rights, and agreed to assume the obligations, of MOC under the Agreement of
Limited Partnership of TWE, dated October 29, 1991, as amended (the "TWE
Partnership Agreement"); and (ii) Holdco 1 contributed the MOC TWE Interest to
TWE Holdings I LLC ("LLC 1"), a Delaware limited liability company and a
wholly-owned subsidiary of Holdco 1, and LLC 1 succeeded to the rights, and
agreed to assume the obligations of, Holdco 1 under the TWE Partnership
Agreement (such contributions of the MOC TWE Interest, collectively, the "MOC
TWE Contribution");
WHEREAS, concurrent with the MOC TWE Contribution, MOC or one or more of
its affiliates assigned all applicable rights and obligations relating to the
MOC TWE Interest under the TWE Restructuring Documents to LLC 1, and LLC 1
accepted such assignment and agreed
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to assume such obligations (such obligations, the "MOC Assumed Obligations" and
such rights, the "MOC Assumed Rights");
WHEREAS, following the MOC TWE Contribution and in connection with the
AT&T Comcast Transaction Closing: (i) LLC 1 was duly converted (the "Trust 1
Conversion") into a Delaware statutory trust ("Trust I") pursuant to the
Delaware Limited Liability Company Act (6 Del. C. ss.18-101, et seq.) (as
amended from time to time and any successor to such statute, the "LLC Act") and
to the Delaware Statutory Trust Act (12 Del. C. ss.3801, et seq.) (as amended
from time to time and any successor to such statute, the "Act"); and (ii)
pursuant to the Trust 1 Conversion, (A) the limited liability company interests
in LLC 1 were converted into beneficial interests in Trust I and, upon
completion of the Trust 1 Conversion, 100% of such beneficial interests in
Trust I were held directly by Holdco 1 and (B) the MOC Assumed Obligations, the
MOC Assumed Rights and the rights and obligations of LLC 1 under the TWE
Partnership Agreement were vested in Trust I;
WHEREAS, prior to the AT&T Comcast Transaction Closing: (i) MOC
contributed 100% of the capital stock of MOTH (the "MOTH Stock Interest") to
Grantor (its wholly-owned subsidiary); and (ii) Grantor contributed 100% of the
capital stock of MOTH to TWE Holdings II LLC ("LLC 2"), a Delaware limited
liability company and a wholly-owned subsidiary of Grantor (such contributions
of MOC's MOTH stock, the "MOTH Stock Contribution");
WHEREAS, concurrent with the MOTH Stock Contribution, MOC or one or more
of its affiliates assigned all applicable rights and obligations relating to
the direct or indirect interest of MOC in the equity of MOTH under the TWE
Restructuring Documents to LLC 2, and LLC 2
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accepted such assignment and agreed to assume such obligations (such
obligations, the "MOTH Stock Assumed Obligations" and such rights, the "MOTH
Stock Assumed Rights");
WHEREAS, (i) prior to the AT&T Comcast Transaction Closing MOTH
contributed (the "MOTH TWE Contribution") the MOTH TWE Interest to TWE Holdings
III LLC ("LLC 3"), a Delaware limited liability company and a wholly-owned
subsidiary of MOTH, and LLC 3 succeeded to the rights, and agreed to assume the
obligations, of MOTH under the TWE Partnership Agreement; (ii) concurrent with
the MOTH TWE Contribution, MOTH or one or more of its affiliates assigned all
applicable rights and obligations relating to the MOTH TWE Interest under the
TWE Restructuring Documents to LLC 3, and LLC 3 accepted such assignment and
agreed to assume such obligations (such obligations, the "MOTH TWE Assumed
Obligations" and such rights, the "MOTH TWE Assumed Rights"); (iii) following
the MOTH TWE Contribution and in connection with the AT&T Comcast Transaction
Closing, LLC 3 was duly converted (the "Trust 3 Conversion") into a Delaware
statutory trust ("Trust III") pursuant to the LLC Act and the Act; and (iv)
pursuant to the Trust 3 Conversion, (A) the limited liability company interests
in LLC 3 were converted into beneficial interests in Trust III and, upon
completion of the Trust 3 Conversion, 100% of such beneficial interests in
Trust III were held directly by MOTH and (B) the MOTH TWE Assumed Obligations,
the MOTH TWE Assumed Rights and the rights and obligations of LLC 3 under the
TWE Partnership Agreement were vested in Trust III;
WHEREAS, the MOC Assumed Rights, the MOTH Stock Assumed Rights and the
MOTH TWE Assumed Rights, in the aggregate, include, without limitation, all
rights of Grantor and its affiliates under the TWE Restructuring Documents with
respect to registration rights and to the management and operations of TWE,
MOTH or their affiliates;
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WHEREAS, prior to the closing of the TWE Restructuring, the MediaOne Note
Payment (as defined in the Restructuring Agreement) occurred;
WHEREAS, prior to the closing of the TWE Restructuring: (i) Grantor, as
sole member of LLC 2, approved the conversion of LLC 2 into a Delaware
statutory trust and approved the form of this Agreement as the governing
instrument for such trust; (ii) LLC 2 was duly converted (the "Trust 2
Conversion") into a Delaware statutory trust (the "Trust") pursuant to the LLC
Act and the Act by the execution and filing with the Secretary of State of the
State of Delaware of a Certificate of Conversion and a Certificate of Trust;
and (iii) pursuant to the Trust 2 Conversion, (A) the limited liability company
interests in LLC 2 were converted into beneficial interests in the Trust and,
upon completion of the Trust 2 Conversion, 100% of such beneficial interests in
the Trust were held directly by Grantor and (B) the MOTH Stock Assumed
Obligations and the MOTH Stock Assumed Rights were vested in the Trust;
WHEREAS, prior to the closing of the TWE Restructuring on the date
hereof, a number of transactions are occurring, including: (i) [at the request
of Grantor, Trust III has assigned certain of the MOTH TWE Assumed Rights and
MOTH TWE Assumed Obligations to the Trust, and the Trust has accepted such
assignment and agreed to assume such obligations (the "Trust III Assignment");
(ii) immediately after the Trust III Assignment (or, if there is no Trust III
Assignment, then at the closing of the TWE Restructuring),] Trust III is being
merged into MOTH or dissolved; ([iii]) MOTH is being renamed Time Warner Cable
Inc. ("TWC"; TWC is often referred to in this document as MOTH); and ([iv]) the
parties hereto are entering into this Agreement;
WHEREAS, immediately after giving effect to the TWE Restructuring, Trust
II will hold (i) TWC Class A common stock that represents approximately 17.9%
of the outstanding TWC
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common stock (the "TWC Stock Interest") and (ii) the Specified Number (as
defined in the Restructuring Agreement) of shares of AOL Time Warner common
stock (such shares collectively with the TWC Stock Interest, the "Restructuring
Proceeds");
WHEREAS, the parties hereto now wish to establish the terms and
conditions under which the Trust will be administered in order to effect
divestiture of the Disposition Property (as defined in Section 4); and
WHEREAS, Xxxxx X. Holiday wishes to serve as Operating
Trustee of the Trust.
NOW, THEREFORE, in consideration of the foregoing and mutual covenants
and agreements hereinafter set forth, the parties hereto agree as follows:
1. General Provisions.
(a) Name. The name of this trust is "TWE Holdings II Trust." The
Trust's business may be conducted under the name of the Trust or any other name
or names selected by the Operating Trustee.
(b) Principal Office. The principal office of the Trust shall be 000
Xxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, or such other place within
the State of Delaware as may from time to time be designated by the Operating
Trustee, provided, however, that the Operating Trustee shall not locate its
offices at the offices of AT&T Comcast or its affiliates, as defined below. The
Operating Trustee shall give prompt notice of any change in the address of its
principal office to Grantor and the Delaware Trustee. Neither the Delaware
Trustee nor the Operating Trustee shall maintain an office outside of the State
of Delaware for the conduct of the business of the Trust or conduct the
business of the Trust outside of the State of Delaware; provided that the
Operating Trustee may from time to time conduct the business of the Trust
outside of the State of Delaware if reasonably required for the conduct of such
business. The
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Operating Trustee shall comply with such conditions relating to the immediately
preceding sentence as Grantor shall reasonably request.
(c) Delaware Trustee. The address of the Delaware Trustee in
Delaware is One Little Falls Centre I, Suite 210, 0000 Xxxxxxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxx 00000. The Delaware Trustee is appointed to serve as the
trustee of the Trust in Delaware for the sole purpose of satisfying the
requirements of Section 3807 of the Act that the Trust have at least one
trustee with a principal place of business in Delaware. The Delaware Trustee
shall be entitled to receive customary fees for its services. It is understood
and agreed by the parties hereto that the Delaware Trustee shall have none of
the rights, duties or liabilities of the Operating Trustee. The rights and
duties of the Delaware Trustee shall be limited to (a) accepting legal process
served on the Trust in Delaware and (b) the execution of any certificates
required to be filed with the Delaware Secretary of State which the Delaware
Trustee is required to execute under Section 3811 of the Act. To the extent
that, at law or in equity, the Delaware Trustee has duties (including fiduciary
duties) and liabilities relating thereto to the Trust or Grantor, it is hereby
understood and agreed by the parties hereto, including Grantor, that such
duties and liabilities are replaced by the duties and liabilities of the
Delaware Trustee expressly set forth in this Agreement. The Delaware Trustee
and the Operating Trustee are referred to herein collectively as the "Trustees"
and each individually as a "Trustee."
(d) Declaration of Trust. The Delaware Trustee and the Operating
Trustee each hereby declares that it will hold the assets of the Trust in trust
upon and subject to the conditions set forth herein for the benefit of Grantor,
the holder of 100% of the beneficial interests in the Trust, and in compliance
with all applicable rules, regulations and orders of the Federal Communications
Commission ("FCC Regulations"). It is the intention of the parties
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hereto that the Trust be a statutory trust under the Act. The Delaware Trustee
and the Operating Trustee are hereby authorized to execute any amendment or
restatement of the Certificate of Trust so long as such amendment or
restatement is not inconsistent with the provisions hereof. The Trust is not
intended to be, shall not be deemed to be, and shall not be treated as, a
general partnership, limited partnership, joint venture, corporation or joint
stock company.
(e) No Individual Ownership. Title to all of the assets of the Trust
shall be vested in the Trust until the Trust dissolves or is converted in
accordance with Section 13 hereof; provided, however, if the applicable laws of
any jurisdiction require that title to any part of the assets of the Trust be
vested in a trustee of the Trust, then title to that part of the assets of the
Trust shall be vested in the Operating Trustee to the extent so required, but
the beneficial interest with respect to such asset shall remain in the Trust
for the benefit of the Trust beneficiaries.
(f) Tax Treatment. The parties hereby agree that the Trust shall be
treated as a "grantor trust" or, in the event the Trust shall be engaged in the
conduct of a business for profit, as a business entity that is disregarded as
separate from Grantor for purposes of the U.S. Federal, state and local tax
laws, and further agree: (i) not to take any position (or cause the Trust to do
so), in a tax return or otherwise, or take any other action, that is
inconsistent with such treatment; and (ii) to take all commercially reasonable
actions necessary to cause the Trust to be so treated.
2. Contribution to the Trust.
(a) The date on which the Trust 2 Conversion was
completed (i.e., the date hereof) is referred to in this
Agreement as the "Contribution Date".
(b) Following the Contribution Date and during the Trust Term (as
defined in Section 3), except as otherwise provided by this Agreement, the
Trust shall have legal and record
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ownership of the Restructuring Proceeds and all other assets constituting
Disposition Property (as defined in Section 4).
(c) Grantor represents and warrants to the Operating Trustee that:
(i) the MOTH Stock Contribution and the Trust 2 Conversion were effected in
accordance with applicable FCC Regulations; (ii) as of the date of the MOTH
Stock Contribution and the date of the Trust 2 Conversion, Grantor had full
right and legal authority to effect such action occurring on such date as
described herein; (iii) immediately after the closing of the TWE Restructuring,
the Restructuring Proceeds will not be subject to any liens or other
encumbrances (other than as created by, or permitted under, this Agreement, the
TWE Restructuring Documents or as arising under securities laws of general
applicability); and (iv) all consents, waivers and approvals of the Federal
Communications Commission ("FCC") and third parties necessary for the MOTH
Stock Contribution and the Trust 2 Conversion have been received and are in
full force and effect.
(d) If any additional interest in TWC or AOL Time Warner is acquired
by AT&T Comcast or any of its subsidiaries during the Trust Term, AT&T Comcast
shall cause such interest to be contributed to the Trust and become property of
the Trust or, if AT&T Comcast so elects, AT&T Comcast may cause such additional
interest to be contributed to, and become property of, Trust I. Except as
provided herein, no other property may be contributed to the Trust by any party
without the prior written agreement of the Operating Trustee.
3. Term of the Trust and Irrevocability. The Trust shall be irrevocable
by Grantor and shall have a term that expires at such time as the Trust
terminates in accordance with the provisions of Section 13 (the "Trust Term").
4. Operating Trustee Control of the Disposition Property. The Operating
Trustee shall have sole and exclusive authority to manage: (a) the
Restructuring Proceeds; (b) any
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additional TWC or AOL Time Warner shares subsequently contributed to the Trust;
(c) any other Restricted Consideration (as defined in Section 5(c)) received by
the Trust; and (d) any other non-cash consideration received by the Trust in an
Alternate Disposition (as defined in Section 5(c)) or as a dividend or
distribution on securities or ownership interests held by the Trust and not
approved by the Media Bureau (as defined in Section 5(e)) for distribution to
Grantor in accordance with Section 5(e) or 6(b), respectively, (such
Restructuring Proceeds, additional TWC or AOL Time Warner shares, other
Restricted Consideration and other non-cash assets received by the Trust and
not approved for distribution, collectively, the "Disposition Property"), and
to exercise any and all rights with respect to any Disposition Property
including, without limitation, the MOTH Stock Assumed Rights and the right to
exercise any voting, director appointment, consent, approval or management
rights arising from the Disposition Property under the TWE Restructuring
Documents, in a manner intended to maximize the value of the Disposition
Property. Grantor shall not retain any voting, director appointment, consent,
approval or management rights with respect to the Disposition Property. Grantor
shall not have any rights to require the Operating Trustee to consult with
Grantor or its affiliates with respect to the exercise of such rights and the
Operating Trustee shall not consult with Grantor with respect to such rights.
As used herein, the term "affiliates" shall have the definition adopted in 47
U.S.C. ss. 153(1), provided, however, that for purposes of this Agreement (i)
neither the Trust nor any of its subsidiaries shall be deemed to be an
affiliate of Grantor or of any of Grantor's affiliates and (ii) neither MOTH
nor any of its subsidiaries shall be deemed to be an affiliate of Grantor or of
any of Grantor's affiliates after the closing of the TWE Restructuring. The
Trust shall retain and hold, and the Operating Trustee shall manage, the
Disposition Property in accordance with, and subject to, the terms and
conditions set forth in this Agreement, the TWE
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Partnership Agreement, the TWE Restructuring Documents to the extent the Trust
is a party thereto or is otherwise bound thereby, and any other applicable
constitutional document or other agreement setting out rights and
responsibilities with respect to any Disposition Property entered into in
connection with an Alternate Disposition, Public Sale or Private Sale
(collectively, the "Governing Agreements"). The Operating Trustee shall have
the authority to sell, transfer, assign, pledge or otherwise dispose of or
encumber the Disposition Property only to the extent and in the manner provided
in the Governing Agreements. The Operating Trustee shall cause the Trust to
comply with the applicable terms of the Governing Agreements.
5. Divestiture of the Disposition Property.
(a) The Operating Trustee shall, in accordance with the terms of
this Agreement, divest the Disposition Property. Subject to compliance by the
Operating Trustee with its obligations under this Agreement, the decision to
divest part or all of the Disposition Property shall be made by the Operating
Trustee in its sole discretion. Subject to Section 5(c), Grantor shall not take
any action to block a sale by the Operating Trustee on any grounds other than
the Operating Trustee's Malfeasance (as defined in Section 7(h)).
(b) During the period commencing on the date hereof and ending five
(5) years after the AT&T Comcast Transaction Closing (the "5-Year Period"),
except as otherwise provided herein, the Operating Trustee shall pursue such
registration rights as are available with respect to all or any portion of the
Disposition Property pursuant to the TWE Partnership Agreement, the TWE
Restructuring Documents or otherwise, in a manner intended to maximize the
value received by Grantor, consistent with the goal of concluding a complete
divestiture of the Disposition Property by the end of the 5-Year Period. The
Operating Trustee shall have complete authority to prosecute such registration
rights, including authority to engage
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in such litigation as may be necessary. In addition, if any of the Disposition
Property is saleable in the public market either under an already effective
registration statement or without the requirement of a registration statement
under Federal or state securities laws, then the Operating Trustee may also
seek to effect a sale pursuant thereto in a manner intended to maximize the
value received by Grantor, consistent with the goal of concluding a complete
divestiture of the Disposition Property by the end of the 5-Year Period. A sale
by the Operating Trustee in the manner permitted in this Section 5(b) is
referred to herein as a "Public Sale." The Operating Trustee shall not
otherwise have the power to dispose of any of the Disposition Property during
the 5-Year Period, except pursuant to one or more Alternate Dispositions or
Private Sales (as defined in Section 5(g)), or as provided in Section 13.
(c) Notwithstanding the foregoing, at any time during the 5-Year
Period, Grantor may propose any one or more Alternate Dispositions (as defined
below) with respect to all or part of the Disposition Property, which the
Operating Trustee shall be obligated to use reasonable best efforts to cause
the Trust to effect (including by becoming a party to agreements related
thereto, subject to appropriate indemnification from Grantor and its
affiliates), unless such Alternate Disposition is withdrawn by Grantor. If
necessary to effect an Alternate Disposition, the Operating Trustee will
discontinue (and will not initiate) any efforts to effect a Public Sale, if
inconsistent with the terms of such Alternate Disposition, until the Alternate
Disposition is closed or terminated without closing. The following types of
transactions or combinations thereof constitute "Alternate Dispositions":
(i) A sale or other transfer to any person or persons
unaffiliated with Grantor for cash.
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(ii) A sale or other transfer, conversion or exchange to any
person or persons unaffiliated with Grantor for any consideration
other than cash, provided it is not for Restricted Consideration.
"Restricted Consideration" is an interest in AOL Time Warner or an
entity that, directly or indirectly, owns interests in cable
systems or cable programming networks which are attributable under
then current FCC Regulations to AOL Time Warner.
(iii) A sale or other transfer, conversion or exchange to any
person or persons unaffiliated with Grantor for Restricted
Consideration.
(iv) A transaction: (A) with any person or persons
unaffiliated with Grantor; (B) which involves a security linked to
any of the Disposition Property or a security that would be deemed
to be a "derivative security" (as defined in Rule 16a-1(c) under
the Securities Exchange Act of 1934, as amended) with respect to
any of the Disposition Property, or (even if not a security) which
would (were it a security) be considered such a derivative
security, or which transfers some or all of the economic risk of
ownership of any of the Disposition Property, including, without
limitation, any forward contract, equity swap, put or call, put or
call equivalent position, collar, non-recourse loan, sale of
exchangeable security or similar transaction; (C) which has a term
ending no more than five (5) years following the AT&T Comcast
Transaction Closing; and (D) pursuant to which the Trust receives
cash and retains an economic interest equal to no more than 20% of
the risk of loss or opportunity for gain or an economically
equivalent combination of risk of loss and opportunity for gain;
provided, however, that any such transaction shall have economics
similar to a collar and the spread on the
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collar shall include the trading price of the relevant Disposition
Property on the day the transaction is entered into (a "Derivative
Transaction").
(d) For the avoidance of doubt, Disposition Property shall, unless
divested by the Trust in accordance with this Section 5, be retained by the
Trust and not distributed to Grantor or its affiliates, except as provided
pursuant to Section 13.
(e) In the event that all or part of the Disposition Property is
divested in an Alternate Disposition in return for any consideration that does
not constitute Restricted Consideration, the following shall apply: (i) cash
consideration will be distributed to Grantor, in accordance with Section 6; and
(ii) non-cash consideration will remain in the Trust as Disposition Property
unless its distribution to Grantor is approved by the FCC's Media Bureau (the
"Media Bureau"). The Operating Trustee will promptly file a written request
with the Media Bureau, styled as a "Request to Distribute Non-Cash,
Non-Restricted Consideration," seeking approval to distribute any such non-cash
consideration that it receives to Grantor. The distribution of such non-cash
consideration to Grantor shall be deemed approved unless the Media Bureau
notifies the Operating Trustee, in writing and within 30 days of receipt of
such notice from the Operating Trustee, that it objects to such distribution,
provided however, that the Media Bureau may, by written notice to the Operating
Trustee, extend the 30 day period for an additional 30 days if necessary to
complete its review, in which case the distribution will be deemed approved
unless the Media Bureau notifies the Operating Trustee, in writing and within
60 days of its receipt of the Operating Trustee's request, that it objects to
the proposed distribution. If the Media Bureau objects to the distribution of
any non-cash consideration within 30 days of notice from the Operating Trustee
(or, in the event the Media Bureau's review period is extended as provided
herein, within 60 days of the Operating Trustee's notice), then such non-
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cash consideration shall constitute Disposition Property and shall be retained
by the Trust. If at any time after an Alternate Disposition any Restricted
Consideration received in such Alternate Disposition ceases to be Restricted
Consideration, the consideration will be treated as set forth in this Section
5(e) with respect to consideration that is not Restricted Consideration.
(f) Following an Alternate Disposition, and subject to the
limitations contained in Section 5(g), the Operating Trustee will retain the
power for the remainder of the 5-Year Period to dispose of in a Public Sale any
remaining Disposition Property, other than that which is the subject of a
Derivative Transaction, in a manner intended to maximize the value received by
Grantor, consistent with the goal of concluding a complete divestiture of the
Disposition Property by the end of the 5-Year Period and subject to the
provisions of the Governing Agreements. Following an Alternate Disposition
which is a Derivative Transaction, the Operating Trustee will not take any
action during the 5-Year Period (or, if shorter, during the period of time such
Disposition Property is the subject of the Derivative Transaction) to effect a
Public Sale of that part of the Disposition Property which is the subject of
the Derivative Transaction without the consent of Grantor.
(g) The Operating Trustee shall take all actions necessary to
implement the TWE Restructuring in accordance with the terms of the TWE
Restructuring Documents, will abide by the TWE Restructuring Documents as if it
were a party thereto and will not take any action that would result in a breach
of the TWE Restructuring Documents by Grantor or any of its affiliates. The
Operating Trustee further agrees that it will dispose of any consideration
received and assets retained in connection with the TWE Restructuring in a
manner consistent with the terms of this Agreement and the TWE Restructuring
Documents; provided that:
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(i) The Operating Trustee will not take any action during the
90-day period following the closing of the TWE Restructuring to
dispose of any publicly traded common stock of AOL Time Warner held
by the Trust in a Public Sale, unless so requested by Grantor;
(ii) The Operating Trustee will not take any action during
the 180-day period following the closing of the TWE Restructuring
to effect any initial public offering of stock in TWC, pursuant to
any applicable registration rights, unless so requested by Grantor;
and
(iii) If: (A) the consideration received or assets retained
by the Trust in the TWE Restructuring includes a partnership
interest in TWE; (B) the TWE Partnership Agreement (as amended and
restated in connection with the TWE Restructuring) or any other TWE
Restructuring Document restricts the rights of Grantor or the Trust
to sell or otherwise transfer such partnership interest for a
period of time following the closing of the TWE Restructuring not
to exceed two years; (C) such amended and restated TWE Partnership
Agreement (or a related agreement) provides procedures for the
private sale of such partnership interest after such two year
period; and (D) within three years following the closing of the TWE
Restructuring Grantor has not elected to have the Trust effect such
a private sale as an Alternate Disposition; then the Operating
Trustee shall have the right following such three year period (and
not prior thereto) to effect such a private sale pursuant to such
provisions (such a sale of such partnership interest pursuant to
such provisions, a "Private Sale"). For the avoidance of doubt, the
term
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"Private Sale" may include a sale to MOTH or AOL Time Warner
pursuant to an appraisal process set forth in a TWE Restructuring
Document.
(h) Neither Grantor nor any of its affiliates will be permitted to
be a purchaser in a Public Sale or a Private Sale or a counterparty in a
Derivative Transaction.
(i) If any of the Disposition Property remains at the end of the
5-Year Period, the Operating Trustee will have the authority and be directed to
divest whatever portion of the interest remains as quickly as possible, and in
all events within six (6) months thereafter.
(j) The Operating Trustee shall not divest all or part of the
Disposition Property until all necessary governmental approvals, if any, have
been received.
6. Distribution of Proceeds of Sale; Dividends.
(a) In the event of any disposition involving all or part of the
Disposition Property, the Operating Trustee shall cause to be distributed to
Grantor as soon as practicable following receipt: (i) any cash; and (ii)
following approval by the Media Bureau pursuant to Section 5(e), any assets
which do not constitute Restricted Consideration. Such amounts may be reduced
by the amount of fees or expense reimbursements then owed by Grantor to the
Trustees.
(b) In the event that dividends or distributions are paid in respect
of any portion of the Disposition Property, the Operating Trustee shall cause
to be distributed to Grantor as soon as practicable following receipt any such
dividends or distributions to the extent they consist of: (i) any cash; or (ii)
following approval by the Media Bureau pursuant to the procedure described in
Section 5(e), any assets which do not constitute Restricted Consideration.
7. Trustee Obligations, Fees and Indemnification.
(a) The Trust shall be administered by the Operating Trustee in
accordance with the provisions of this Agreement and applicable FCC
Regulations.
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(b) The Operating Trustee shall maintain such records, files and
books as the Operating Trustee, in the Operating Trustee's reasonable
discretion, deems necessary or appropriate to enable the Operating Trustee to
carry out the terms and conditions of this Agreement and to record the actions
taken by the Operating Trustee in the performance of the Operating Trustee's
duties under this Agreement.
(c) The Operating Trustee is expressly authorized to incur and
obligate Grantor to pay all charges, taxes and other expenses that are
reasonable, necessary and proper in connection with the preparation, execution
and delivery of this Agreement and the performance by the Operating Trustee of
its duties under this Agreement. Grantor shall pay directly all such charges,
taxes and expenses or reimburse the Operating Trustee therefor within thirty
(30) days after receipt of the Operating Trustee's notice and documentation
under Section 7(e).
(d) In compensation for the Operating Trustee's services under this
Agreement, Grantor will pay the Operating Trustee customary fees for the time
that the Operating Trustee spends in connection with the formation and
administration of the Trust. All such fees shall become due and payable within
thirty (30) days after the Operating Trustee has given notice thereof to
Grantor under Section 7(e).
(e) The Operating Trustee shall provide timely and adequate written
notice to Grantor (no more frequently than once each month) specifying in
reasonable detail: (i) the charges, taxes and other expenses to be paid
directly by Grantor to third parties or for which Grantor shall reimburse the
Operating Trustee (together with customary supporting documentation); and (ii)
the fees due to be paid to the Operating Trustee.
(f) The Operating Trustee shall provide to Grantor: (i) within
fifteen (15) days of receipt thereof, any accountings received by the Operating
Trustee with respect to the
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operations of TWC or any other issuer of securities comprising Disposition
Property, except to the extent disclosure of such information to Grantor is
prohibited by the terms of Section 12; and (ii) within fifteen (15) days of
receipt of a written request by Grantor, an accounting of the expenses of the
Operating Trustee incurred directly or by third parties for the performance of
services to the Operating Trustee in connection with the performance of the
Operating Trustee's duties under this Agreement.
(g) Except as specifically provided in this Agreement, the Operating
Trustee shall not be entitled to any other fee or other payment hereunder or
otherwise, including any termination fee.
(h) Grantor hereby agrees to indemnify each Trustee and hold each
Trustee harmless against all claims, actions, proceedings, suits, costs of
defense (including reasonable and customary attorneys' and accountants' fees
and disbursements), expenses, liabilities, judgments, damages, awards and
settlements asserted against or incurred by such Trustee in connection with, or
in any way arising directly or indirectly from, the performance by such Trustee
of its duties under this Agreement, including claims and liabilities arising
from any actions taken by the Operating Trustee in furtherance of its
obligation to sell as quickly as possible any of the Disposition Property that
remains after the 5-Year Period, provided that the indemnification provided for
in this Section 7(h) shall not apply to any claims or liabilities arising from
such Trustee's Malfeasance. For purposes of this Agreement, a Trustee's
"Malfeasance" shall mean such Trustee's bad faith, gross negligence, willful
misconduct or other action inconsistent with the terms of this Agreement or any
of the other Governing Agreements.
(i) Except as incurred as a result of such Trustee's Malfeasance, a
Trustee shall not be liable with respect to actions taken by it in reliance
upon any paper, document or
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signature reasonably believed by such Trustee to be genuine and to have been
signed by the proper party that is not in fact genuine. A Trustee shall not be
liable for any error of judgment in any act done or omitted, nor for any
mistake of fact or law, nor for anything which such Trustee may do or refrain
from doing in accordance with this Agreement, absent such Trustee's
Malfeasance. A Trustee may consult with accountants, attorneys and other
advisors, and any action taken in accordance with the advice of such advisor
shall be presumptively done in good faith.
(j) The Operating Trustee shall have no duty or liability to Grantor
with respect to any change in the value of any of the Disposition Property
resulting from TWC's or AOL Time Warner's operations or otherwise (except for
the Operating Trustee's Malfeasance) during the Trust Term.
(k) Neither Trustee shall be required to furnish a bond or other
security in any jurisdiction for the faithful performance of such Trustee's
duties.
(l) Except where the provision of Section 5(i) applies, the
Operating Trustee shall manage the property of the Trust, consistent with the
terms of this Agreement, in a manner intended to maximize the value of the
properties of the Trust and Trust I, taken as a whole, and the Trust and Trust
I shall cooperate with each other in connection with any transaction by either
of them.
(m) The Trustee shall assist Grantor and Grantor's affiliates and
shall cooperate fully in all tax matters relating to the Trust or its assets,
including, without limitation, in connection with the preparation and filing of
any tax returns or reports which Grantor or any of Grantor's affiliates is
required to prepare or file with respect to the Trust or its assets.
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8. Trustee Selection. The Delaware Trustee, and any successor Delaware
Trustee, shall be either a natural person who is a resident of the State of
Delaware or a legal entity having its principal place of business in the State
of Delaware, in each case appointed by Grantor. The Operating Trustee shall be
appointed by Grantor after approval by the Media Bureau. Each of the Trust and
Trust I shall have the same operating trustee and the same Delaware trustee,
respectively. No Trustee may be a director, officer, manager, agent or employee
of Grantor or its affiliates immediately prior to or at any time while serving
as Trustee, nor may any Trustee have any extratrust business, personal or
familial relationship with Grantor or its affiliates while serving as Trustee
that is inconsistent with any applicable FCC Regulations. In the event that a
Trustee enters into any relationship prohibited by this Section 8 at any time
while serving as Trustee, such Trustee shall resign in the manner provided in
Section 9.
9. Trustee Removal, Resignation, and Replacement.
(a) Grantor may not remove or replace a Trustee at will.
(b) The rights and duties of the Trustees hereunder (other than a
Trustee's rights to receive payments to the extent accrued prior to termination
and to be indemnified hereunder) shall terminate upon such Trustee's incapacity
to act, death or bankruptcy or other insolvency. No interest in the Disposition
Property, nor any of the rights and duties of an incapacitated, deceased,
bankrupt or insolvent Trustee, may be transferred by such Trustee by will,
devise, succession or in any other manner except as provided in this Agreement.
(c) A Trustee may resign by giving thirty (30) days advance written
notice of resignation to Grantor, provided that such Trustee agrees that any
such resignation shall not become effective until a successor Trustee has been
appointed.
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(d) In the event of a Trustee's resignation, incapacity to act,
death or bankruptcy or other insolvency, such Trustee shall be succeeded by a
successor Trustee chosen by Grantor in compliance with FCC Regulations and the
terms of this Agreement. Any successor Trustee shall succeed to all of the
rights and obligations of the Trustee replaced hereunder upon execution by such
successor Trustee of a counterpart of this Agreement. A successor Trustee shall
not be liable for breaches of this Agreement committed by a predecessor
Trustee.
(e) Notwithstanding any other provision of this Section 9, a Trustee
that resigns or is removed as trustee of Trust I (other than upon termination
of such trust) shall likewise resign or be removed as Trustee of the Trust.
10. Trustee Advisors.
(a) The Operating Trustee shall have the right to retain such
accountants, attorneys, investment bankers, managing underwriters and other
advisors (collectively, "Advisors") as are necessary or appropriate to enable
the Operating Trustee to perform in a prudent and competent manner the duties
and obligations of the Operating Trustee under this Agreement; provided,
however, that: (i) the fees and expenses of such Advisors shall be reasonable
and customary; and (ii) such Advisors do not have any material business
relationship with AOL Time Warner during the term of the Trust. In order to
facilitate an expeditious divestiture, the Operating Trustee may retain any
Advisors retained prior to the Contribution Date by AT&T, Comcast or their
respective affiliates, provided, however, that: (i) such Advisors are solely
accountable to the Operating Trustee in respect of advice or services rendered
to the Operating Trustee in connection with divestiture of any Disposition
Property; and (ii) such Advisors shall not continue to represent AT&T Comcast
or its affiliates in connection with
-22-
divestiture of such Disposition Property. The Operating Trustee shall be
required to provide Grantor with notice and documentation of fees and expenses
incurred in connection with the retention of Advisors pursuant to this Section
10(a).
(b) Grantor and its affiliates also shall have the right to retain
Advisors to assist the Operating Trustee's Advisors with the divestiture of the
Disposition Property (including any Advisors retained by AT&T or Comcast prior
to the Contribution Date, to the extent they have not been retained by the
Operating Trustee pursuant to the previous subsection); provided, however, that
the Operating Trustee shall be free to accept or reject any advice offered by
such Advisors and shall be privy to any instructions that Grantor may give to
such Advisors, and provided further, that, for avoidance of doubt, the
Grantor's Advisors may communicate with the Operating Trustee's Advisors, but
shall not communicate directly with the Operating Trustee except in the
presence of Grantor and Operating Trustee's Advisors.
(c) The Operating Trustee shall direct any Advisors that it retains,
and Grantor shall direct any Advisors that it retains, with regard to the
divestiture of the Disposition Property, to take appropriate steps to ensure
that such Advisors do not act as a conduit for communications between the
Operating Trustee and Grantor that are otherwise prohibited under the terms of
this Agreement.
11. Grantor Involvement in TWC Management. Except as provided in Section
12(a), Grantor and its affiliates shall not have an interest in, control of or
involvement in the operation or management of TWC, or seek to influence the
operation or management of TWC or any cable system in which TWC has an
interest, other than Kansas City Cable Partners and Texas Cable Partners, L.P.,
on account of AT&T Comcast's 50% general partnership interest therein which is
held outside of TWC, provided that Grantor and its affiliates shall not: (i)
receive information
-23-
from Kansas City Cable Partners or Texas Cable Partners, L.P. regarding the
price, terms or conditions that TWC, or any affiliate of AOL Time Warner that
is a successor to TWC's interest in Kansas City Cable Partners or Texas Cable
Partners, L.P. or any of TWC's or such successor's affiliates (other than
Kansas City Cable Partners or Texas Cable Partners, L.P. or any of their
subsidiaries), negotiates for carriage of video programming on the cable
systems owned by Kansas City Cable Partners or Texas Cable Partners, L.P.; or
(ii) provide information to Kansas City Cable Partners or Texas Cable Partners,
L.P. regarding the price, terms or conditions that Grantor or its affiliates
negotiate for the carriage of video programming on the cable systems owned by
Grantor or its affiliates. For purposes of this Section 11, the term "TWC"
shall include TWC and any other issuer of securities or ownership interests
constituting Disposition Property. This Section 11 will cease to apply with
respect to Kansas City Cable Partners or Texas Cable Partners, L.P., as the
case may be, at such time as neither TWC nor any other affiliate of AOL Time
Warner owns any interest in such entity.
12. Communications.
(a) Communications Regarding Operation and Management of TWC.
(i) The Operating Trustee shall not provide any information
to Grantor concerning the operation or management of TWC or the
operation or management of the cable systems in which TWC has a
direct or indirect interest, except that the Operating Trustee
shall use its reasonable best efforts to obtain and provide Grantor
with financial statements and tax information with respect to TWC
and the Disposition Property as and when furnished by TWC and as
required by Grantor or its affiliates for compliance with
securities and tax laws, rules and regulations, or other applicable
legal or regulatory requirements. None
-24-
of Grantor, or any of its affiliates, or any of its or their
officers, directors or employees, shall communicate with the
Operating Trustee, directly or indirectly, including indirectly
through their Advisors, regarding the operation or management of
TWC or the operation or management of any cable system in which TWC
has an interest.
(ii) The Operating Trustee shall have such access to Grantor
and its affiliates' personnel, books, records and facilities
related to the Disposition Property as may be reasonably necessary
for the Operating Trustee to fulfill its obligations hereunder.
(iii) Any communications between the Operating Trusteee and
Grantor or its affiliates permitted by this subsection (a) shall be
in writing.
(b) Communications Regarding Public Sale, Private Sale or Alternate
Disposition. The Operating Trustee and Grantor and its affiliates may engage in
communications in order to facilitate divestiture of the Disposition Property
through any Public Sale, Private Sale or Alternate Disposition. The Operating
Trustee shall provide periodic reports (no less frequently than quarterly
during the 5-Year Period and no less frequently than monthly thereafter) to
Grantor (with a copy to the Media Bureau) describing the Operating Trustee's
efforts to accomplish divestiture of the Disposition Property through any
Public Sale, Private Sale or Alternate Disposition, provided, however, that to
the extent such reports contain information that Grantor deems confidential,
such reports shall be provided to the Media Bureau only after such confidential
information has been redacted. In the event that such reports are provided to
the Media Bureau in redacted form, the unredacted versions of such reports will
be maintained by the Operating Trustee, or its designee, at a location in the
Washington, D.C. area,
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and shall be made available upon request for inspection by the Media Bureau
during normal business hours. Upon request by the Media Bureau, the Operating
Trustee shall file the unredacted version of any such report with the Media
Bureau accompanied by a request for confidential treatment. Grantor will use
its reasonable best efforts, consistent with the terms of this Agreement and
applicable FCC Regulations, to assist the Operating Trustee in accomplishing
the divestiture of the Disposition Property, including using its reasonable
best efforts to provide such information as is required by the Operating
Trustee to effect such divestiture.
(c) Communications Regarding Fiduciary Matters. Communications
between the Trustees and Grantor regarding the fiduciary obligations owed by
the Trustees to Grantor shall be permitted at any time.
(d) The Operating Trustee shall retain copies of all written
communications between the Operating Trustee or its Advisors and Grantor, its
affiliates or its Advisors. The Operating Trustee shall prepare (or, as
appropriate, instruct its Advisors to prepare) and retain a contemporaneous
written summary of all oral communications between the Operating Trustee or its
Advisors and Grantor, its affiliates or its Advisors, pursuant to subsections
(b) and (c) of this Section 12, provided that such summary shall not be
required for oral communications that are ministerial or non-substantive in
nature, or are otherwise not material to the performance of the Operating
Trustee's fiduciary obligations to Grantor or its efforts to (a) divest the
Disposition Property or (b) effect an Alternate Disposition in accordance with
the terms of this Agreement. All written communications and summaries of oral
communications shall be maintained by the Operating Trustee, or its designee,
at a location in the Washington, D.C. area, and shall be made available upon
request for inspection by the Media Bureau during normal business hours.
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(e) Subject to a customary confidentiality agreement and to the
terms of any other agreement to which the Trust is a party or otherwise
subject, the Operating Trustee shall permit prospective purchasers of the
Disposition Property in an Alternate Disposition (at the request of the
Grantor) or a Private Sale (at the Operating Trustee's discretion)] to have
access to any and all financial or operational information to which the
Operating Trustee has access, as may be relevant to divestiture of the
Disposition Property.
(f) All notices, requests, consents, approvals, waivers and demands
among the parties hereto (collectively, "Notices") shall be deemed to have been
given if in writing and: (i) personally delivered against a written receipt;
(ii) sent by confirmed telephonic facsimile; or (iii) delivered to a reputable
express messenger service (such as Federal Express, DHL Courier or United
Parcel Service) for overnight delivery, addressed as follows (or to such other
address as such party shall have given notice to one another):
(A) If to Grantor:
MOC Holdco II, Inc.
000 X. Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attn: Abe Patlov, President
Fax: 000-000-0000
(B) If to the Operating Trustee:
Xxxxx X. Holiday
000 Xxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxxx, XX 00000
Fax:
-27-
(C) If to the Delaware Trustee:
The Capital Trust Company
of Delaware
One Little Falls Centre I
Xxxxx 000
0000 Xxxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Corporation Trust and Transaction Services
Fax: 000-000-0000
The period in which a response to any such Notice must be given shall commence
to run from the date of the receipt of a personally delivered Notice, or the
date of confirmation of a telephonic facsimile, or two (2) days following the
proper delivery of the Notice to a reputable express messenger service, as the
case may be.
(g) For purposes of this Section 12, the term "TWC" shall include
TWC and any other issuer of securities or ownership interests constituting
Disposition Property.
13. Termination.
(a) Subject to the provisions of Section 17(e), the Trust shall
dissolve upon written election by Grantor delivered to the Trustees, provided
that one of the following events has occurred (any such event, a "Dissolution
Event"):
(i) divestiture of all of the Disposition Property and the
payment of all proceeds to the order of Grantor with respect to
such divestiture, in the manner provided in Sections 5(e) and 6(a);
(ii) expiration of the six-month period following the 5-Year
Period, provided, however, that if any portion of the Disposition
Property remains in the Trust at the expiration of the six-month
period following the 5-Year Period, the Trust will continue until
the FCC either approves the dissolution of the Trust or the
remainder of the Disposition Property has been divested and all
proceeds due
-28-
to the order of Grantor with respect to such divestiture have been
paid, in the manner provided in Sections 5(e) and 6(a); or
(iii) AT&T Comcast ceases directly or indirectly to own any
beneficial interest in the Trust.
(b) Upon dissolution of the Trust, the Operating Trustee shall take
such action as is necessary or appropriate to deliver to the order of Grantor,
or such other party designated by Grantor in writing to the Operating Trustee,
all property then held by the Trust or the Operating Trustee on behalf of the
Trust pursuant to this Agreement, subject to satisfaction (whether by payment
or reasonable provision therefor) of claims of all creditors of the Trust
(other than Grantor) including, without limitation, the Trustees. The Operating
Trustee shall have a reasonable period to conclude the administration of the
Trust, and shall be compensated for all reasonably necessary services performed
after the dissolution date. Following completion by the Operating Trustee of
the actions required by this Section 13(b), the Operating Trustee shall provide
written notice to Grantor and, upon written request of Grantor, the Trustees
shall terminate the legal existence of the Trust by canceling the Certificate
of Trust in accordance with the Act.
(c) Notwithstanding any other provision of this Section 13, upon a
Dissolution Event, Grantor may elect, in lieu of dissolving the Trust, to
terminate this Agreement and to convert the Trust into a Delaware limited
liability company, Delaware corporation or other legal entity, which conversion
shall be upon such terms as Grantor shall deem appropriate; provided that upon
completion of such conversion all rights, obligations, assets and liabilities
of the Trust remain, under applicable law, rights, obligations, assets and
liabilities of the entity so created. The Trustees shall cooperate with Grantor
in connection with the foregoing.
-29-
(d) At any time, subject to the Governing Agreements, Grantor may
cause the Trustees to merge the Trust with Trust I, or to transfer all of the
assets and liabilities of the Trust (including, without limitation, the
Disposition Property) to Trust I, or to accept a transfer of all of the assets
and liabilities of Trust I to the Trust; provided that, in each case and to the
extent required under the Governing Agreements, the successor or transferee
trust shall assume the obligations of the merged or transferor trust under the
Governing Agreements (other than the Declaration of Trust of the merged or
transferor trust). For purposes of this Section 13(d), the term "Governing
Agreements" includes the "Governing Agreements" as defined in this Agreement
and in the Declaration of Trust of the successor or transferee, or merged or
transferor, trust, as the case may be.
14. Modification. This Agreement shall not be modified except by an
instrument in writing executed by Grantor and the Operating Trustee; provided
that the rights, duties, responsibilities and compensation of the Delaware
Trustee shall not be changed without the prior written consent of the Delaware
Trustee. No modifications of this Agreement, except for modifications that are
insubstantial and immaterial, shall be made unless approved by the Media
Bureau. A request for approval of a modification of this Agreement shall be
deemed approved unless the Media Bureau notifies the Operating Trustee, in
writing and within 14 days of receipt of such request from the Operating
Trustee, that it objects to such modification. A copy of any insubstantial and
immaterial modification in the Trust shall be filed with the FCC within ten
days following the execution thereof, with a copy to the Media Bureau. The
parties shall cooperate in the modification of this Agreement in the event
changes or modifications are needed in order to bring this Agreement and the
transactions contemplated hereby into compliance with applicable FCC
Regulations or other applicable laws.
-30-
15. Assignment. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective permitted successors and
permitted assigns. Subject to the power to delegate the performance of
ministerial responsibilities hereunder as deemed necessary by the Operating
Trustee, this Agreement shall not be assignable by the Trustees. Grantor shall
be entitled to assign its rights hereunder to AT&T Comcast or any subsidiary
thereof or any person who becomes the direct or indirect beneficial owner of
the Disposition Property as a result of a merger or transfer of all or
substantially all the assets of AT&T Comcast or any of its subsidiaries.
16. Confidentiality. This Agreement and all matters concerning the
performance, enforcement and interpretation hereof shall be kept in strict
confidence by the parties, except where disclosure is required by law, rule or
regulation (including the Federal securities laws or FCC Regulations), to carry
out the express purposes and terms of this Agreement, or in connection with any
claims or actions relating to this Agreement.
17. Miscellaneous.
(a) If any part of any provision of this Agreement or any other
agreement, document or writing given pursuant to or in connection with this
Agreement shall be invalid or unenforceable under applicable law, said part
shall be ineffective to the extent of such invalidity only, without in any way
affecting the remaining part of said provision or the remaining provisions of
this Agreement.
(b) The headings of the sections and subsections of this Agreement
are inserted for convenience of reference only and do not form a part or affect
the meaning hereof.
-31-
(c) This Agreement, the rights and obligations of the parties
hereto, and any claims and disputes relating thereto, shall be governed by and
construed in accordance with the laws of the State of Delaware (not including
the choice of law rules thereof).
(d) This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, and all of which together
shall be deemed to be one and the same instrument.
(e) The provisions of Sections 7, 12(f), 14, 15, 16 and 17 shall
remain in effect, and shall survive, any termination of the Trust.
(f) The failure of Grantor or a Trustee to exercise or enforce any
right or provision of this Agreement shall not constitute a waiver of such
right or provision.
(g) This Agreement, together with the Certificate of Trust, is the
complete and exclusive agreement between the parties with respect to the
creation, operation and termination of the Trust, superseding and replacing any
and all prior agreements, communications and understandings, written or oral,
regarding such Trust.
(h) Neither Trustee shall have any duty or other obligation to pay,
provide or arrange for the provision of funds necessary to perform such
Trustee's duties under this Agreement, other than the provision of the written
notices to Grantor pursuant to Section 7 hereof. Neither Trustee shall have any
personal liability for the payment of any Trust expense or obligation to third
parties whatsoever.
-32-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused this Agreement to be duly executed on their behalf as of the date and
year first hereinabove set forth.
MOC HOLDCO II, INC.
By:
-------------------------------
Name:
Title:
----------------------------------
Xxxxx X. Holiday
THE CAPITAL TRUST COMPANY OF
DELAWARE
By:
-------------------------------
Name:
Title:
