Exhibit 10.12
BMA V L.L.C.
SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
DATED AS OF MAY 31, 2007
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS
1.1.
Definitions 1
1.2.
Terms Generally 16
ARTICLE II GENERAL PROVISIONS
2.1.
Managing, Regular and Special Members 17
2.2.
Formation; Name; Foreign Jurisdictions 17
2.3.
Term 17
2.4.
Purposes; Powers 17
2.5.
Place of Business 19
ARTICLE III MANAGEMENT
3.1.
Managing Member 19
3.2.
Member Voting, etc 20
3.3.
Management 20
3.4.
Responsibilities of Members 22
3.5.
Exculpation and Indemnification 22
3.6.
Representations of Members 23
3.7.
Tax Information 24
ARTICLE IV CAPITAL OF THE COMPANY
4.1.
Capital Contributions by Members 24
4.2.
Interest 31
4.3.
Withdrawals of Capital 31
ARTICLE V PARTICIPATION IN PROFITS AND LOSSES
5.1.
General Accounting Matters 31
5.2.
GP-Related Capital Accounts; Tax Capital Accounts 33
5.3.
GP-Related Profit Sharing Percentages 33
5.4.
Allocations of GP-Related Net Income (Loss) 34
5.5.
Liability of Members 35
5.6.
[Intentionally omitted.] 35
5.7.
Repurchase Rights, etc. 35
5.8.
Distributions 35
5.9.
Business Expenses 41
5.10.
Tax Capital Accounts; Tax Allocations 41
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ARTICLE VI ADDITIONAL MEMBERS; WITHDRAWAL OF MEMBERS; SATISFACTION AND DISCHARGE OF COMPANY INTERESTS; TERMINATION
6.1.
Additional Members 41
6.2.
Withdrawal of Members 43
6.3.
GP-Related Member Interests Not Transferable 43
6.4.
Consequences upon Withdrawal of a Member 44
6.5.
Satisfaction and Discharge of a Withdrawn Member' s GP-Related Interest 44
6.6.
Dissolution of the Company 49
6.7.
Certain Tax Matters 49
6.8.
Special Basis Adjustments 50
ARTICLE VII CAPITAL COMMITMENT INTERESTS; CAPITAL CONTRIBUTIONS; ALLOCATIONS; DISTRIBUTIONS
7.1.
Capital Commitment Interests, etc 50
7.2.
Capital Commitment Capital Accounts 51
7.3.
Allocations 51
7.4.
Distributions 52
7.5.
Valuations 55
7.6.
Disposition Election 56
7.7.
Capital Commitment Special Distribution Election 56
ARTICLE VIII WITHDRAWAL, ADMISSION OF NEW MEMBERS
8.1.
Member Withdrawal; Repurchase of Capital Commitment Interests 56
8.2.
Transfer of Member' s Capital Commitment Interest 61
8.3.
Compliance with Law. 61
ARTICLE IX DISSOLUTION
9.1.
Dissolution 61
9.2.
Final Distribution 61
9.3.
Amounts Reserved Related to Capital Commitment Member Interests 62
ARTICLE X MISCELLANEOUS
10.1.
Submission to Jurisdiction; Waiver of Jury Trial 62
10.2.
Ownership and Use of the Company Name 63
10.3.
Written Consent 64
10.4.
Letter Agreements; Schedules 64
10.5.
Governing Law; Separability of Provisions 64
10.6.
Successors and Assigns 64
10.7.
Confidentiality 64
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10.8.
Notices 65
10.9.
Counterparts 65
10.10.
Power of Attorney 65
10.11.
Member' s Will 65
10.12.
Cumulative Remedies 65
10.13.
Legal Fees 65
10.14.
Entire Agreement 66
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BMA V L.L.C.
SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT of BMA V L.L.C. (the " Company" ), dated as of May 31, 2007, by and among Blackstone Holdings III L.P., a Delaware limited partnership (the " Managing Member" or " Holdings" ), the other members of the Company as provided on the signature pages hereto, and such other persons that are admitted to the Company as members after the date hereof in accordance herewith.
WITNESSETH WHEREAS, the Company was formed under the LLC Act (defined below) pursuant to a certificate of formation filed in the office of the Secretary of State of the State of Delaware on July 8, 2005;
WHEREAS, the original limited liability company agreement of the Company was executed as of July 8, 2005 (the " Original Operating Agreement" );
WHEREAS, the Original Operating Agreement was amended and restated in its entirety by the Amended and Restated Limited Liability Company Agreement, dated as of October 14, 2005, of the Company (as amended to date, the " First Amended and Restated Operating Agreement" ); and
WHEREAS, the parties hereto now wish to amend and restate the First Amended and Restated Operating Agreement in its entirety as of the date hereof and as more fully set forth below.
NOW, THEREFORE, the parties hereto agree as follows: ARTICLE I
DEFINITIONS 1.1. Definitions . Unless the context otherwise requires, the following terms shall have the following meanings for purposes of this Agreement:
" Advancing Party" has the meaning set forth in Section 7.1(b). " Affiliate" when used with reference to another person means any person (other than the Company), directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with, such other person.
" Agreement" means this Second Amended and Restated Limited Liability Company Agreement, as it may be further amended and restated from time to time. " Alternative Investment Vehicle" means any investment vehicle or structure formed pursuant to paragraph 2.7 of the BCP V Partnership Agreement or any other " Alternative Investment Vehicle" (as defined in any other BCP V Agreements).
" Applicable Collateral Percentage" shall have the meaning with respect to any Firm Collateral and Special Firm Collateral, in each case, as set forth on the books and records of the Company with respect thereto.
" Bankruptcy" means, with respect to any person, the occurrence of any of the following events: (i) the filing of an application by such person for, or a consent to, the appointment of a trustee or custodian of his assets; (ii) the filing by such person of a voluntary petition in Bankruptcy or the seeking of relief under Title 11 of the United States Code, as now constituted or hereafter amended, or the filing of a pleading in any court of record admitting in writing his inability to pay his debts as they become due; (iii) the failure of such person to pay his debts as such debts become due; (iv) the making by such person of a general assignment for the benefit of creditors; (v) the filing by such person of an answer admitting the material allegations of, or his consenting to, or defaulting in answering, a Bankruptcy petition filed against him in any Bankruptcy proceeding or petition seeking relief under Title 11 of the United States Code, as now constituted or as hereafter amended; or (vi) the entry of an order, judgment or decree by any court of competent jurisdiction adjudicating such person a bankrupt or insolvent or for relief in respect of such person or appointing a trustee or custodian of his assets and the continuance of such order, judgment or decree unstayed and in effect for a period of 60 consecutive days.
" BCA V" means Blackstone Capital Associates V L.P., a Delaware limited partnership, and any other partnership or other entity with terms substantially similar to the terms of that partnership and formed after the date hereof in connection with the indirect participation by one or more partners thereof who receive Carried Interest.
" BCA V Partnership Agreement" means the Amended and Restated Agreement of Limited Partnership of Blackstone Capital Associates V L.P., dated as of October 14, 2005, as it may be amended, supplemented or otherwise modified from time to time. " BCOM" means (i) Blackstone Communications Partners I L.P., a Delaware limited partnership, and (ii) any other investment vehicle established pursuant to Article 2 of the partnership agreement for the partnership referred to in clause (i) above.
" BCP" means Blackstone Capital Partners L.P., a Delaware limited partnership, and any investment vehicle established in accordance with the terms of Blackstone Capital Partners L.P.' s partnership agreement to invest in lieu of Blackstone Capital Partners L.P. on behalf of one or more of the partners thereof.
" BCP II" means Blackstone Capital Partners II Merchant Banking Fund L.P., a Delaware limited partnership, any investment vehicle established pursuant to paragraph 2.7 of such partnership' s partnership agreement, Blackstone Offshore Capital Partners II L.P., a Cayman Islands exempted limited partnership, and any investment vehicle established pursuant to paragraph 2.7 of such partnership' s partnership agreement. " BCP III" means Blackstone Capital Partners III Merchant Banking Fund L.P., a Delaware limited partnership, Blackstone Offshore Capital Partners III L.P., a Cayman Islands exempted limited partnership, and any investment vehicle established pursuant to paragraph 2.7 of the respective partnership agreement of either of such partnerships. " BCP IV" is the collective reference to Blackstone Capital Partners IV L.P., a Delaware limited partnership, and any Alternative Investment Vehicle relating thereto and any Parallel Fund.
" BCP V" is the collective reference to (i) Blackstone Capital Partners V L.P., a Delaware limited partnership, and any Alternative Investment Vehicle relating thereto, (ii) BCP V-S L.P., a Delaware limited partnership, and any Alternative Investment Vehicle relating thereto, and (iii) Blackstone Capital Partners V-AC L.P., a Delaware limited partnership, and any Alternative Investment Vehicle relating thereto.
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" BCP V Agreements" is the collective reference to (i) the BCP V Partnership Agreement and (ii) the similar agreements of any Alternative Investment Vehicles.
" BCP V Partnership Agreement" is the collective reference to (i) the Amended and Restated Agreement of Limited Partnership, dated as of October 14, 2005, of Blackstone Capital Partners V L.P. and (ii) the Amended and Restated Agreement of Limited Partnership, dated as of October 14, 2005, of BCP V-S L.P., in each case, as may be amended, supplemented or otherwise modified from time to time. " BFCOMP" means Blackstone Communications Capital Associates I L.P., Blackstone Family Communications Partnership I L.P. and any other partnership that is an Affiliate thereof and has terms substantially similar to those of the foregoing partnerships and is formed in connection with the participation by one or more partners thereof directly or indirectly in investments in securities also purchased by BCOM or any other funds with substantially similar investment objectives to BCOM and that are sponsored or managed by an Affiliate of the Company (which includes serving as general partner of such funds).
" BFCOMP Agreement" means the Amended and Restated Agreements of Limited Partnership dated as of June 29, 2000 of Blackstone Family Communications Partnership I L.P. and Blackstone Communications Capital Associates I L.P. and any other BFCOMP limited partnership agreement. " BFCOMP Investment" means any direct or indirect investment by BFCOMP. " BFIP" means Blackstone Capital Associates II L.P., Blackstone Capital Associates III L.P., Blackstone Capital Associates IV L.P., Blackstone Capital Associates V L.P., Blackstone Family Investment Partnership I L.P., Blackstone Family Investment Partnership II L.P., Blackstone Family Investment Partnership III L.P., Blackstone Family Investment Partnership IV- A L.P. , Blackstone Family Investment Partnership IV- B L.P., Blackstone Family Investment Partnership V L.P., Blackstone Family Investment Partnership V- A L.P. and any other entity that is an Affiliate thereof and has terms similar to those of the foregoing partnerships and is formed in connection with the participation by one or more of the partners thereof in investments in securities also purchased by BCP, BCP II, BCP III, BCP IV, BCP V or any other fund with substantially similar investment objectives to BCP, BCP II, BCP III, BCP IV and BCP V and that are sponsored or managed by an Affiliate of the Company (which includes serving as general partner of such funds). " BFIP Agreement" means the Amended and Restated Agreement of Limited Partnership dated as of December 14, 1995 of Blackstone Family Investment Partnership I L.P., the Limited Partnership Agreement dated as of December 14, 1995 of Blackstone Family Investment Partnership II L.P., the Limited Partnership Agreement dated as of December 21, 1995 of Blackstone Capital Associates II L.P., the Limited Partnership Agreements dated as of June 27, 1997 of Blackstone Family Investment Partnership III L.P. and Blackstone Capital Associates III L.P., the Amended and Restated Agreements of Limited Partnership dated as of November 9, 2001 of Blackstone Family Investment Partnership IV- A L.P., Blackstone Family Investment Partnership IV- B L.P. and Blackstone Capital Associates IV L.P., and the Amended and Restated Agreements of Limited Partnership dated as of October 14, 2005, of Blackstone Family Investment Partnership V L.P. and Blackstone Capital Associates V L.P. and the Amended and
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Restated Agreement of Limited Partnership dated as of March 23, 2006 of Blackstone Family Investment Partnership V- A L.P., as each of such agreements may be amended, supplemented or otherwise modified from time to time, and any other BFIP limited partnership agreement.
" BFIP Investment" means any direct or indirect investment by BFIP.
" BFIP V" means, collectively, Blackstone Family Investment Partnership V L.P., a Delaware limited partnership.
" BFIP V Partnership Agreement" means, collectively, the Amended and Restated Agreements of Limited Partnership of BFIP V, dated as of October 14, 2005, as amended, supplemented or otherwise modified from time to time, and any other BFIP partnership agreement.
" BFMEZP" means Blackstone Mezzanine Capital Associates L.P., Blackstone Mezzanine Capital Associates II L.P., Blackstone Family Mezzanine Partnership L.P., Blackstone Family Mezzanine Partnership II L.P., Blackstone Mezzanine Holdings L.P., Blackstone Mezzanine Holdings II L.P., and any other entity that is an Affiliate thereof and that has terms substantially similar to those of the foregoing partnerships and is formed in connection with the participation by one or more partners thereof directly or indirectly in investments in securities also purchased by BMEZP I, BMEZP II or any other funds with substantially similar investment objectives to BMEZP I and BMEZP II and that are sponsored or managed by an Affiliate of the Company (which includes serving as general partner of such funds). " BFMEZP Agreement" means the Amended and Restated Agreements of Limited Partnership dated as of October 22, 1999 of Blackstone Family Mezzanine Partnership L.P. and Blackstone Mezzanine Capital Associates L.P., the Limited Partnership Agreement dated as of March 22, 1999 of Blackstone Mezzanine Holdings L.P., the Amended and Restated Agreements of Limited Partnership dated as of June 10, 2005 of Blackstone Family Mezzanine Partnership II L.P., Blackstone Mezzanine Capital Associates II L.P. and Blackstone Mezzanine Holdings II L.P., as each of such agreements may be amended, supplemented or otherwise modified from time to time, and any other BFMEZP limited partnership agreement.
" BFMEZP Investment" means any direct or indirect investment by BFMEZP.
" BFREP" means Blackstone Real Estate Capital Associates L.P., Blackstone Real Estate Capital Associates II L.P., Blackstone Real Estate Capital Associates III L.P., Blackstone Real Estate Capital Associates International L.P., Blackstone Real Estate Capital Associates IV L.P., Blackstone Real Estate Capital Associates International II L.P., Blackstone Real Estate Capital Associates V L.P., Blackstone Real Estate Capital Associates VI L.P., Blackstone Family Real Estate Partnership L.P., Blackstone Family Real Estate Partnership II L.P., Blackstone Family Real Estate Partnership III L.P., Blackstone Family Real Estate Partnership International- A L.P., Blackstone Family Real Estate Partnership International- B L.P., Blackstone Family Real Estate Partnership IV L.P., Blackstone Family Real Estate Partnership International II L.P., Blackstone Family Real Estate Partnership V L.P., Blackstone Real Estate Holdings L.P., Blackstone Real Estate Holdings II L.P., Blackstone Real Estate Holdings III L.P., Blackstone Real Estate Holdings International- A L.P., Blackstone Real Estate Holdings International- B L.P., BRE Holdings International- A L.P., BRE Holdings International- B L.P., Blackstone Real Estate Holdings IV L.P., Blackstone Real Estate Holdings International II L.P., Blackstone Real Estate Holdings International II-A L.P., BRE Holdings International II L.P., Blackstone Real Estate Holdings V L.P., Blackstone Real Estate Holdings VI L.P. and any other entity that is an Affiliate
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thereof and that has terms substantially similar to those of the foregoing partnerships and is formed in connection with the participation by one or more partners thereof in real estate and real estate-related investments also purchased by BREP and any other funds with substantially similar investment objectives to BREP and that are sponsored or managed by an Affiliate of the General Partner (which includes serving as general partner of such funds).
" BFREP Agreement" means the Agreement of Limited Partnership, dated as of May 20, 1996, of Blackstone Real Estate Capital Associates L.P., the Agreements of Limited Partnership, dated as of October 21, 1996, of Blackstone Family Real Estate Partnership II L.P., Blackstone Real Estate Holdings II L.P. and Blackstone Real Estate Capital Associates II L.P., the Agreements of Limited Partnership, dated as of October 21, 1998, of Blackstone Family Real Estate Partnership III L.P., Blackstone Real Estate Holdings III L.P. and Blackstone Real Estate Capital Associates III L.P., the Amended and Restated Agreements of Limited Partnership, dated as of July 26, 2001, of Blackstone Family Real Estate Partnership International- A L.P., Blackstone Family Real Estate Partnership International- B L.P., Blackstone Real Estate Capital Associates International L.P., Blackstone Real Estate Holdings International- A L.P., Blackstone Real Estate Holdings International- B L.P., BRE Holdings International- A L.P. and BRE Holdings International- B L.P., the Amended and Restated Agreements of Limited Partnership, dated as of September 9, 2002, of Blackstone Family Real Estate Partnership IV L.P., Blackstone Real Estate Capital Associates IV L.P. and Blackstone Real Estate Holdings IV L.P., the Amended and Restated Agreements of Limited Partnership, dated as of August 5, 2005, of Blackstone Family Real Estate Partnership International II L.P., Blackstone Real Estate Capital Associates International II L.P., Blackstone Real Estate Holdings International II L.P., Blackstone Real Estate Holdings International II-A L.P. and BRE Holdings International II L.P., the Amended and Restated Agreements of Limited Partnership, dated as of December 14, 2005, of Blackstone Family Real Estate Partnership V L.P., Blackstone Real Estate Capital Associates V L.P. and Blackstone Real Estate Holdings V L.P., and the Amended and Restated Agreements of Limited Partnership, dated as of February 8, 2007, of Blackstone Family Real Estate Partnership VI L.P., Blackstone Real Estate Capital Associates VI L.P. and Blackstone Real Estate Holdings VI L.P., as each of such agreements may be amended, supplemented or otherwise modified from time to time, and any other BFREP limited partnership agreement.
" BFREP Investment" means any direct or indirect investment by BFREP.
" Blackstone Capital Commitment" has the meaning set forth in the BCP V Agreements.
" Blackstone Co-Investment Rights" has the meaning set forth in the BCP V Agreements.
" BMA V" means Blackstone Management Associates V L.L.C., a Delaware limited liability company and the general partner of BCP V.
" BMA V LLC Agreement" means the Amended and Restated Limited Liability Company Agreement of Blackstone Management Associates V L.L.C., dated as of October 14, 2005, as it may be amended, supplemented or otherwise modified from time to time. " BMEZP I" means (i) Blackstone Mezzanine Partners L.P., a Delaware limited partnership, and (ii) any other investment vehicle established pursuant to Article 2 of the partnership agreement for the partnership referred to in clause (i) above.
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" BMEZP II" means (i) Blackstone Mezzanine Partners II L.P., a Delaware limited partnership, and (ii) any other investment vehicle established pursuant to Article 2 of the partnership agreement for the partnership referred to in clause (i) above. " BPP V" means Blackstone Participation Partnership V L.P., a Delaware limited partnership. " BPP V Partnership Agreement" means the Amended and Restated Agreement of Limited Partnership of BPP V, dated as of October 14, 2005, as it may be amended, supplemented or otherwise modified from time to time.
" BREP VI" means (i) Blackstone Real Estate Partners VI L.P., Blackstone Real Estate Partners VI.TE.1 L.P., Blackstone Real Estate Partners VI.TE.2 L.P. and Blackstone Real Estate Partners VI.F L.P., each a Delaware limited partnership, (ii) any other Parallel Funds or other Supplemental Capital Vehicles (each as defined in the BREP VI Partnership Agreement), or (iii) any other investment vehicle established pursuant to Article 2 of the respective partnership agreements for any of the partnerships referred to in clause (i) above.
" BREP VI Partnership Agreement" means the collective reference to the Amended and Restated Agreements of Limited Partnership of BREP VI, dated as of February 8, 2007, as may be amended, supplemented or otherwise modified from time to time. " Capital Commitment BCP V Investment" means the Company' s interest in a specific investment of BCP V pursuant to the BCP V Partnership Agreement in the Company' s capacity as a capital partner of BCP V.
" Capital Commitment BCP V Commitment" means the Company' s Capital Commitment (as defined in the BCP V Partnership Agreement) to BCP V that relates solely to the Capital Commitment BCP V Interest. " Capital Commitment BCP V Interest" means the Interest (as defined in the BCP V Partnership Agreement) of the Company as a capital partner in BCP V.
" Capital Commitment Capital Account" means, with respect to each Capital Commitment Investment for each Member, the account maintained for such Member to which are credited such Member' s contributions to the Company with respect to such Capital Commitment Investment and any net income allocated to such Member pursuant to Section 7.3 with respect to such Capital Commitment Investment and from which are debited any distributions with respect to such Capital Commitment Investment to such Member and any net losses allocated to such Member with respect to such Capital Commitment Investment pursuant to Section 7.3. In the case of any such distribution in kind, the Capital Commitment Capital Accounts for the related Capital Commitment Investment shall be adjusted as if the asset distributed had been sold in a taxable transaction and the proceeds distributed in cash, and any resulting gain or loss on such sale shall be allocated to the Members participating in such Capital Commitment Investment pursuant to Section 7.3. " Capital Commitment Class A Interest" has the meaning set forth in Section 7.4(f). " Capital Commitment Class B Interest" has the meaning set forth in Section 7.4(f). " Capital Commitment Defaulting Party" has the meaning specified in Section 7.4(g)(ii).
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" Capital Commitment Deficiency Contribution" has the meaning specified in Section 7.4(g)(ii).
" Capital Commitment Disposable Investment" has the meaning set forth in Section 7.4(f).
" Capital Commitment Distributions" means, with respect to each Capital Commitment Investment, all amounts of distributions, received by the Company with respect to such Capital Commitment Investment solely in respect of the Capital Commitment BCP V Interest, less any costs, fees and expenses of the Company with respect thereto and less reasonable reserves for payment of costs, fees and expenses of the Company that are anticipated with respect thereto, in each case which the Managing Member may allocate to all or any portion of such Capital Commitment Investment as it may determine in good faith is appropriate.
" Capital Commitment Giveback Amount" has the meaning set forth in Section 7.4(g).
" Capital Commitment Interest" means the interest of a Member in a specific Capital Commitment Investment as provided herein.
" Capital Commitment Investment" means any Capital Commitment BCP V Investment, but shall exclude any GP-Related Investment. The Managing Member shall determine who may participate in such Capital Commitment Investment.
" Capital Commitment Liquidating Share" with respect to each Capital Commitment Investment means, in the case of dissolution of the Company, the related Capital Commitment Capital Account of a Member (less amounts reserved in accordance with Section 9.3) as of the close of business on the effective date of dissolution.
" Capital Commitment Member Carried Interest" means, with respect to any Member, the aggregate amount of distributions or payments received by such Member (in any capacity) from Affiliates of the Company in respect of or relating to " carried interest" . " Capital Commitment Member Carried Interest" includes any amount initially received by an Affiliate of the Company from any fund (including BCP, BCP II, BCP III, BCP IV and BCP V, any similar funds formed after the date hereof, and any other private equity merchant banking, real estate or mezzanine funds, whether or not in existence as of the date hereof) to which such Affiliate serves as general partner (or other similar capacity) that exceeds such Affiliate' s pro rata share of distributions from such fund based upon capital contributions thereto (or the capital contributions to make the investment of such fund giving rise to such " carried interest" ). " Capital Commitment Member Interest" means a Member' s interest in the Company with respect to the Capital Commitment BCP V Interest.
" Capital Commitment Net Income (Loss)" with respect to each Capital Commitment Investment means all amounts of income received by the Company with respect to such Capital Commitment Investment, including without limitation gain or loss in respect of the disposition, in whole or in part, of such Capital Commitment Investment, less any costs, fees and expenses of the Company allocated thereto and less reasonable reserves for payment of costs, fees and expenses of the Company anticipated to be allocated thereto. " Capital Commitment Profit Sharing Percentage" with respect to each Capital Commitment Investment means the percentage interest of a Member in Capital Commitment Net Income (Loss) from such Capital Commitment Investment set forth in the books and records of the Company.
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" Capital Commitment Recontribution Amount" has the meaning set forth in Section 7.4(g).
" Capital Commitment-Related Capital Contributions" has the meaning set forth in Section 7.1(a).
" Capital Commitment-Related Commitment," with respect to any Member, means such Member' s commitment to the Company relating to such Member' s Capital Commitment Member Interest, as set forth in the books and records of the Company. " Capital Commitment Special Distribution" has the meaning set forth in Section 7.7(a). " Capital Commitment Value" has the meaning set forth in Section 7.5. " Carried Interest" shall mean (i) " Carried Interest Distributions" as defined in the BCP V Partnership Agreement, and (ii) any othe ...
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