\n March 1, 2001 $1,245,000 Dayton Academy
\n March 1, 2001 $ 405,000 Dayton View
\n March 1, 2002 $ 405,000 Dayton View
\n June 30, 2002 $ 350,000 Dayton Academy
\n June 30, 2002 $1,595,000 Dayton View
\n<\/c><\/c><\/s><\/caption>\n<\/table>\nThe dates listed in this Section 2.2 are referred to herein as “Deadline
\nDates.”<\/p>\n
2.3 Timing of Donations. Donations will be considered to have been
\nobtained as of the date such funds are actually made available to AFM. Donations
\nfor which donors have made firm commitments but for which funds have not yet
\nbeen forwarded to AFM will be counted as <\/p>\n
2
\n 3
\nhaving been obtained by the Deadline Date if the party that arranged for such
\nfunds agrees to loan (interest free) to AFM the amount of such donation between
\nthe applicable Deadline Date for such donations and the actual date of receipt
\nby AFM of such funds, repayment of such funds to be contingent on receipt of the
\npledged donation. Notwithstanding the foregoing, Edison shall have no obligation
\nto loan such funds to AFM.<\/p>\n
2.4 Recognition of Donor’s Intention. It is understood that if a donor
\nspecifically provides that its donation is not to be credited toward the
\nCampaign, the parties will not count that donation toward the Campaign.<\/p>\n
ARTICLE 3
\n COORDINATION OF EFFORT<\/p>\n
3.1 Cooperation. The parties will cooperate with each other in all
\n aspects of the Campaign. Such cooperation will include, for example,
\n joint development of fundraising strategy, joint development of
\n brochures or other informational material regarding the Campaign or
\n the Community Schools, and coordination of schedules to allow for
\n joint meetings with donors.<\/p>\n
3.2 Donor Identification. Each party will work to identify potential
\n donors to the Campaign. Prior to contacting any donor
\n (including, among others, local or national foundations,
\n corporations or other businesses, individuals or private
\n foundations, or any government entity), each party will notify
\n the other of the donors it plans to contact and will share any
\n materials, such as letters and any supporting information, that
\n it plans to distribute to or share with such potential donors.<\/p>\n
3.3 Meetings. Upon reasonable notice, each party shall make its
\n philanthropic personnel available in Dayton, Ohio on a regular basis
\n to ensure that the Campaign is adequately supported. Edison support
\n will include availability of Edison personnel in Dayton for meetings
\n with important donor prospects, regular status updates with AFM
\n personnel, regular communication to discuss and adjust Campaign
\n strategy, and research on prospects, individuals, foundations, and
\n other funding sources.<\/p>\n
3.4 Costs. Each party will pay its own costs related to the Campaign.
\nHowever, Edison shall bear any reasonable costs of AFM or ACS related to the
\nsolicitation of funds from non-Ohio government entities or from donors outside
\nof the Dayton, Ohio area whose funds are to be credited to the Edison
\nFundraising Amount or with whom Edison initiated contact.<\/p>\n
3.5 Confidentiality\/Description of the Campaign to Donors. In order to
\nreinforce the agreement between the parties that the entire Campaign is a joint
\nendeavor, the parties agree that in all communication regarding the Campaign
\nwith potential donors or any other person or entity other than the employees,
\nattorneys, officers and directors of AFM, ACS, or Edison, or lenders involved in
\neither the Dayton Academy or Dayton View projects (and their advisors), they
\nwill describe the Campaign as a joint $4 million effort and will not disclose
\nany other terms of this <\/p>\n
3
\n 4
\nFundraising Agreement. The parties also agree not to share this document with
\nanyone other than the employees, attorneys, officers and directors of AFM, ACS,
\nor Edison or lenders involved in either the Dayton Academy or Dayton View
\nprojects (and their advisors) without the express written permission of the
\nother party.<\/p>\n
3.6 Nationally Recognized Figures. Edison shall use reasonable efforts
\n to arrange for two nationally recognized figures to visit Dayton,
\n Ohio in connection with the Campaign. An example of a nationally
\n recognized figure is William Bennett.<\/p>\n
3.7 Compliance with Ohio Statutory requirements.<\/p>\n
(a) AFM hereby consents to Edison’s use of the AFM name for the
\n purpose of soliciting funds on AFM’s behalf.<\/p>\n
(b) Edison and AFM shall disclose in each advertisement for
\n solicitations the actual or estimated dollar amount of each donation that
\n will benefit AFM.<\/p>\n
(c) AFM shall keep a final accounting for each solicitation it
\n conducts pursuant to this Agreement for a period of three (3) years.<\/p>\n
(d) AFM shall provide a copy of the final accounting for such
\n solicitations within ten (10) days of a written request for said
\n accounting by Edison or the Ohio Attorney General.<\/p>\n
(e) Edison shall indemnify and hold harmless AFM, its affiliates,
\n successors ad assigns, and their respective shareholders, employees,
\n officers, directors, members and agents from and against any and all
\n losses, claims, damages, liabilities, costs and expenses (including
\n reasonable attorneys’ fees) incurred or suffered by any of the indemnified
\n parties in connection with or arising out of Edison’ breach of this
\n Agreement or failure to comply with the statutory requirements for
\n charitable solicitations for which Edison has contractual or statutory
\n responsibility.<\/p>\n
(f) AFM shall indemnify and hold harmless Edison, its affiliates,
\n successors and assigns, and their respective shareholders, employees,
\n officers, directors, members and agents from and against any and all
\n losses, claims, damages, liabilities, costs and expenses (including
\n reasonable attorneys’ fees) incurred or suffered by any of the indemnified
\n parties in connection with or arising out of AFM’s breach of this
\n Agreement or failure to comply with the statutory requirements for
\n charitable solicitations for which AFM has contractual or statutory
\n responsibility.<\/p>\n
ARTICLE 4
\n DEFAULT<\/p>\n
4.1 Edison Default. The following shall be considered an “Edison Event of
\nDefault”: (a) the failure of Edison to arrange for the receipt by AFM of any
\npart of the Edison Fundraising <\/p>\n
4
\n 5
\nAmount outlined in Article 2 by the relevant Deadline Date; or (b) the failure
\nof Edison to provide the co-ordination described in Article 3.<\/p>\n
4.2 AFM Default. The following shall be considered an “AFM Event of
\nDefault”: (a) the failure of AFM to arrange for receipt by AFM of any part of
\nthe AFM Fundraising Amount outlined in Article 2 by the relevant Deadline Date;
\nor (b) the failure of AFM to provide the co-ordination described in Article 3.<\/p>\n
4.3 Event of Default. The terms “Event of Default” as used herein shall
\nmean either an Edison Event of Default or an AFM Event of Default.<\/p>\n
4.4 Opportunity to Cure. The parties agree that no Event of Default, other
\nthan an Event of Default listed in 4.1 (a) or 4.2 (a) of this Agreement, will be
\neffective until 30 days after the non-defaulting party gives written notice of
\nthe default to the defaulting party. The notice of default shall state clearly
\nthe respect in which the non-defaulting party is deemed to be in default under
\nthis agreement. Upon receipt of such notice, the defaulting party shall have 30
\ndays to cure such default. In the event such party fails to cure such default
\nwithin such 30-day period, representatives of the two parties will meet to try
\nto resolve the matter. If these representatives are unable to resolve the matter
\nwithin ten days, then the Event of Default shall become effective upon notice to
\nthe defaulting party by the non-defaulting party of such inability to resolve
\nthe matter in accordance with the non-defaulting party’s notice of default.<\/p>\n
ARTICLE 5
\n CONSEQUENCES OF DEFAULT<\/p>\n
5.1 Consequences of Edison Default. Upon the effective date of any Edison
\nEvent of Default described in Section 4.1 (a) of this Agreement, and provided
\nthat an AFM Event of Default pursuant to Section 4.2 (a) of this Agreement has
\nnot become effective pursuant to Section 4.3 of this agreement, Edison will
\ntransfer its interest in the LLC to AFM for $1 within 30 days of the effective
\ndate of such notice of default.<\/p>\n
5.2 AFM Default. Upon the effective date of any AFM Event of Default
\ndescribed in Section 4.2 (a) of this Agreement, and provided that an Edison
\nEvent of Default pursuant to Section 4.1 (a) of this Agreement has not become
\neffective pursuant to Section 4.3 of this agreement, AFM will transfer its
\ninterest in the LLC to Edison for $1 within 30 days of the effective date of
\nsuch notice of default.<\/p>\n
5.3 Effect of Dayton Foundation Conditional Grant Agreement. The parties
\nagree that should the Dayton Foundation pay any amount of the principle
\nreduction payment of $350,000 due and payable by AFM on June 30, 2002 under the
\nloan for the Dayton Academy school pursuant to the terms and conditions of the
\nDF Conditional Grant, such payment shall be credited to AFM as funds raised for
\npurposes of this Agreement.<\/p>\n
ARTICLE 6
\n MISCELLANEOUS<\/p>\n
5
\n 6
\n 6.1 No Third Party Beneficiary Rights. No third party, whether a
\nconstituent of AFM or otherwise, may enforce or rely upon any obligation of, or
\nthe exercise of or failure to exercise any right of, AFM or Edison in this
\nAgreement. This Agreement is not intended to create any rights of a third party
\nbeneficiary.<\/p>\n
6.2 Construction and Enforcement. This Agreement shall be construed and
\nenforced in accordance with the laws of the State of Ohio.<\/p>\n
6.3 Amendments. This Agreement may be altered, amended, changed, or
\nmodified only by agreement in writing executed by Edison and AFM.<\/p>\n
6.4 Section Headings. The section headings shall not be treated as part of
\nthis Agreement or as affecting the true meaning of the provisions hereof. The
\nreference to section numbers herein shall be deemed to refer to the numbers
\npreceding each section.<\/p>\n
6.5 Assignment. This Agreement shall not be assigned by either party
\nwithout the prior written consent of the other party, provided that Edison may,
\nwithout consent of ACS, delegate the performance but not responsibility for such
\nduties and obligations of Edison to a public charity whose board members include
\nofficers or directors of Edison.<\/p>\n
6.6 No Waiver. No waiver of any provision of this Agreement shall be
\ndeemed or shall constitute a waiver of any other provision. Nor shall such
\nwaiver constitute a continuing waiver unless otherwise expressly stated.<\/p>\n
6.7 Notices. All notices required or permitted by this Agreement shall be
\nin writing and shall be either personally delivered or sent by
\nnationally-recognized overnight courier, facsimile or by registered or certified
\nU.S. mail, postage prepaid, addressed as set forth below (except that a party
\nmay from time to time give notice changing the address for this purpose). A
\nnotice shall be effective on the date personally delivered, on the date
\ndelivered by a nationally-recognized overnight courier, on the date set forth on
\nthe receipt of a telecopy or facsimile, or upon the earlier of the date set
\nforth on the receipt of registered or certified mail or on the fifth day after
\nmailing.<\/p>\n
To Edison at: Edison Schools Inc.
\n 521 Fifth Avenue, 15th Floor
\n New York, NY 10175
\n Attn: H. Christopher Whittle
\n Facsimile: 212-419-1604<\/p>\n
with a copy to: Edison Schools Inc.
\n 521 Fifth Avenue, 15th Floor
\n New York, NY 10175
\n Attn: John Williams
\n Facsimile: 212-419-1868<\/p>\n
To AFM at: Alliance Facilities Management, Inc.<\/p>\n
6
\n 7
\n 4401 Dayton-Liberty Road
\n Dayton, OH 45414
\n Attn: Dr. Stephen P. Scovic
\n Facsimile: (937) 372-9782<\/p>\n
with a copy to: Sam Warwar, Esq.
\n Coolidge, Wall, Womsley & Lombard Co., L.P.A.
\n 33 West First Street, Suite 600
\n Dayton, OH 45402-1289
\n Facsimile: 937-223-6705<\/p>\n
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
\nthe day and year first above written.<\/p>\n
EDISON SCHOOLS INC.<\/p>\n
By:_________________________________
\n H. Christopher Whittle
\n President and CEO<\/p>\n
ALLIANCE FACILITIES MANAGEMENT, INC.<\/p>\n
By:__________________________________
\n President<\/p>\n
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