20140924Application.pdf

BINGHNM
Russell M. Blau
Jeffrey R. StrenkowskiPhone: 202.373.6000Fax: [phone]
[e-mail]
j effrey. [e-mail]
September 23,2014
Via Overnisht Courier
Ms. Jean D. Jewell, Secretary
Idaho Public Utilities Commission
47 2 W est Washington Street
Boise, Idaho 83702
secretary@puc. idaho. gov
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Re: GC Pivotal,Llc d/b/a Global Capacity Application for a Certificate of Public
Convenience and Necessity to Provide Facilities-Based and Resold Local
Exchange and Interexchange Services in the State ofldaho
Dear Ms. Jewell:
On behalf of GC Pivotal,LLc d/b/a Global Capacity ("Global Capacity'' or "Applicant"),
enclosed for filing are an original and seven (7) copies the above-referenced Application.
The original copy of the Application is unbound.
Global Capacity respectfully requests confidential treatment of EfE!![p to the
Application. This exhibit contains sensitive financial information that is considered
proprietary and confidential in nature and is not otherwise available to the public.
Disclosure of such information could provide Applicant's competitors with a significant
advantage that would result in substantial harm to Applicant's competitive position in
Idaho. Applicant therefore respectfully requests that the information contained therein be
treated in a confidential manner and be protected from public disclosure.
An electronic copy of this filing has also been submitted. Please date-stamp the enclosed
extra copy and return it in the envelope provided. Should you have any questions
concerning this filing, please do not hesitate to contact the undersigned.
Respectfu lly submitted,
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Bingham McCutchen LLP
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Washington, DC
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Russell M. Blau
Jeffrey R. Strenkowski
Counsel for GC Pivotal, LLC dlbla Global Capacity
N76296196
BEFORE THE
PUBLIC UTILITIES COMMISSION
OF THE STATE OF IDAHO
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Application of
GC PIVOTAL, LLC NbIa GLOBAL CAPACITY
For A Certificate of Public Convenience
and Necessity to Provide Facilities-Based
and Resold Local Exchange and
Interexchange Services in the State of Idaho
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Docket N.. 6 LP'T tLl'Ol
APPLICATION OF GC PIVOTAL, LLC DIBIA GLOBAL CAPACITY
FOR A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY
Russell M. Blau
Jeffrey R. Strenkowski
Bingham McCutchen LLP
2020K Street, N.W.
Washington, DC 20006
Tel: [phone]
Fax: [phone]
[e-mail]
j effrey. strenkowski@bingham. com
Counsel for GC Pivotal, LLC d/b/a Global
Capacity
Dated: September 23, 2014
BEFORE THE
PUBLIC UTILITIES COMMISSION
OF THE STATE OF IDAHO
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DocketNo. 6 t, P'T-t4- 0 I
Application of
GC PMTAL, LLC dlbla GLOBAL CAPACITY
For A Certificate of Public Convenience
and Necessity to Provide Facilities-Based
and Resold Local Exchange and
lnterexchange Services in the State of Idaho
APPLICATION OF GC PIVOTAL,LLC D/B/A GLOBAL CAPACITY
FOR A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY
TO PROVIDE LOCAL EXCHANGE AND INTEREXCHAIIGE
SERVICES IN IDAHO
GC Pivotal ,LLcdoing business as Global Capacity ("Global Capacity" or "Applicffit"),
by its undersigned counsel and pursuant to Idaho Code $$ 6l-526-528, IDAPA 31.01.01.111,
Procedural Order No. 26665, ffid the rules of the Public Utilities Commission of Idaho
("Commission"), hereby applies for a Certificate of Public Convenience and Necessity to
authorize it to provide facilities-based and resold local exchange telecommunications services
throughout the State of Idaho and notifies the Commission of its intent to provide interexchange
services.
The State of Idaho has adopted a policy of allowing competition in the local and long
distance telecommunications markets, recognizing that it is in the public interest to develop
effective competition to ensure that all consumers will have access to high quality, low cost, and
innovative telecommunications services. The federal Telecommunications Act of 1996 also
seeks to promote competition and reduce regulation in order to secure lower prices and higher
quality telecommunications services for American consumers. Both goals will be promoted by
granting this Application.
This Application is being filed as part of a larger transaction whereby Global Capacity
intends to obtain certain network assets and data service customers from MegaPath Corporation
("MegaPath").1 Global Capacity intends to provide services to those customers under the same
rates, terms and conditions as they are currently provided by MegaPath. Consistent with the
services provided by MegaPath, Global Capacity does not intend to provide voice services at this
time. In order to serve those customers, Global Capacity is hereby requesting facilities-based
and resold authority, and intends to adopt the existing MegaPath tariffs (if any). Any future
changes in the rates, terms or conditions of services provided to affected customers will be
undertaken pursuant to their service contracts and/or applicable federal and state tariffing
requirements. In support of its Application, Applicant submits the following information:
I. PROPOSED SERVICES
Global Capacity seeks authority to provide facilities-based and resold local exchange and
interexchange non-voice telecommunications services to and from all points in the State of Idaho
that are currently or become open to competition.
Global Capacity will provision telecommunication services through a combination of its
own facilities, facilities leased from other carriers, and resale of facilities and equipment of
Incumbent Local Exchange Carriers ("ILECs") operating in Idaho. Global Capacity's facilities
may include ducts, wires, cables, end-office switches, telecommunications equipment and other
telecommunications transmission facilities. Facilities-based service will be provided via (l)
' Global Capacity requests that the filing it makes with respect to the transfer of assets from MegaPath to
Global Capacity be associated with this Application.
2
commercial wholesale agreement with incumbents or other carriers, (2) Global Capacity's own
facilities, or (3) a combination thereof.
Applicant requests authority to operate throughout the State of Idaho. Therefore, Global
Capacity seeks statewide authority. At this time, Global Capacity does not seek to terminate any
small or rural exemptions existing under Section 251(0(1) of the Federal Telecommunications
Act of 1996; however, Global Capacity seeks statewide authority so that it may expand its
service areas as those areas become open to competition.
Applicant will continuously monitor and maintain a high level of control over its network
on a 24-hours-a-day, 7-days-a-week basis. A copy of Applicant's proposed local exchange tariff
and interexchange tariff are attached hereto as Exhibit E.
II. FORM OF BUSINESS
Applicant's legal name is GC Pivotal, LLC, doing business as Global Capacity.
Applicant maintains its principal place of business at 180 North LaSalle Street, Suite 2430,
Chicago, IL 60601. Applicant is a Delaware limited liability company and a subsidiary of
Pivotal Global Capacity, LLC. A certified copy the Company's Operating Agreement and its
Idaho Certificate of Good Standing are attached hereto as [!!!!$-@!..1Q.
Global Capacity's agent for service is:
Corporation Service Company
12550 W. Explorer Dr.
Suite 100
Boise, ID 83713
The sole member of Global Capacity is Pivotal Global Capacity, LLC, an Arizona entity.
Global Capacity controls Magenta Netlogic Ltd, also known as Global Capacity Limited
in the United Kingdom.
III.
The officers and directors of Applicant are:
Officers and Directors:
F. Francis Najafi, President2
Richard Garner, Secretary and Treasurer
TELECOMMUNICATION SERVICE
Global Capacity intends to provide the same telecommunications services to customers
that MegaPath currently provides to its customers. As such, it hereby requests facilities-based
and resold local exchange and interexchange authority. It proposes to begin service consistent
with the Commission's approval of its Application.
IV. SERVICE TERRITORY
Applicant requests authority to operate throughout the State of Idaho. Therefore,
Global Capacity seeks statewide authority. At this time, Global Capacity does not seek to
terminate any small or rural exemptions existing under Section 251(0(1) of the Federal
Telecommunications Act of 1996; however, Global Capacity seeks statewide authority so that it
may expand its service areas as those areas become open to competition. Global Capacity will
provision telecommunication services through a combination of its own facilities, facilities
leased from other carriers, and resale of facilities and equipment of Incumbent Local Exchange
Carriers ("ILECs") operating in ldaho. Global Capacity's facilities may include ducts, wires,
cables, end-office switches, telecommunications equipment and other telecommunications
transmission facilities. Facilities-based service will be provided via (1) commercial wholesale
agreernent with incumbents or other carriers, (2) Global Capacity's own facilities, or (3) a
combination thereof.
2 M.. Najafi is the Founder and CEO of Pivotal Group, a leading investment company with an equity
portfolio that includes Global Capacity.
4
V. FINANCIAL INFORMATION
Applicant submits under seal as Exhibit D confidential financial statements representing
Applicant's financial status. Applicant requests that Exhibit D be afforded confidential treatment
as this information is protected by law from public inspection, examination or copying, in
accordance with Section 9-340D(2), Idaho Code. This exhibit contains financial information,
which, if disclosed, would result in substantial harm to Applicant's competitive position. As
shown in the information provided, Applicant is financially qualified to operate within Idaho.
VI. LLUSTRATIVEPRICELIST/TARIFFFILING
Illustrative price lists and tariffs, setting forth the terms, conditions, rates, charges and
regulations pursuant to which Global Capacity proposes to provide telecommunications service
are attached hereto as Exhibit E. Since Global Capacity intends to provide services at the same
rates and under the same terms and conditions as MegaPath, the proposed price list and tariff,
attached hereto mirror MegaPath's existing price list and tariff.
VU. CONTACTS
All correspondence and communications regarding this Application should be addressed
to Applicant's attorneys:
Russell M. Blau
Jeffrey R. Strenkowski
Bingham McCutchen LLP
2020K Street, N.W.
Washington, DC 20006
Tel:[phone]
Fax:[phone]
russell.blau@bingham. com
j effrey. strenkowski @bingham. com
with a copy to:
Jererny M. Kissel, General Counsel
180 North LaSalle Street
Suite 2430
Chicago, Illinois 6060 1
Tel: [phone]
Fax:[phone]
Email : jkissel@globalcapacity. com
Following the grant of this Application, the Commission should direct all correspondence
directly to Global Capacity's regulatory and operations contact:
Jererny M. Kissel, General Counsel
180 North LaSalle Street
Suite 2430
Chicago, Illinois 6060 1
Tel: [phone]
Fax:[phone]
Email : [e-mail]
The following toll-free number is available for end user consumer inquiries:
866-226-4244
The person responsible for customer service is:
John Nannenhorn, Customer Advocate Manager
180 North LaSalle Street
Suite 2430
Chicago, Illinois 60601
Tel:[phone]
Fax:[phone]
V[I. INTERCONNECTION AGREEMENTS
As part of the transaction with MegaPath, the MegaPath interconnection agreement with
the ILEC will be transferred to Global Capacity, thereby enabling Global Capacity to continue to
provide services to the transferred customers and potential new customers.
IX. COMPLIANCE WITH COMMISSION RULES
Global Capacity's statement that it agrees to comply with all applicable Idaho laws and
CommissionrulesandregulationsisattachedheretoasW.Applicantwillcomplywith
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all applicable Commission rules, regulations and standards, and will provide safe, reliable and
high-quality telecommunications services in Idaho.
X. ESCROW ACCOUNT OR SECURITY BOND
Global Capacity does not require deposits for retail customers.
XI. CONCLUSION
Granting this Application will promote the public interest by increasing competition in
the provision of telecommunications services in the State of Idaho. Applicant will provide
customers high quality, cost effective telecommunications services, with an emphasis on
customer service. In addition to driving prices closer to costs, thereby ensuring just and
reasonable rates, competition also promotes efficiency in the delivery of services and in the
development of new services. These benefits work to maximize the public interest by providing
continuing incentives for carriers to reduce costs while, simultaneously, promoting the
availability of potentially desirable services. Global Capacity agrees to adhere to all state laws
and all Commission policies, rules and orders.
Applicant respectfully submits that grant of this Application will thereby serve the public
interest by providing end users with a broader choice of competitively priced
telecommunications services than currently exists.
WHEREFORE, GC Pivotal, LLC d/bla Global Capacity respectfully request that the
Commission grant a certificate of public convenience and necessity to provide facilities-based
and resold local and interexchange telecommunications services with the State of ldaho.
Respectfully submitted,
,il,{rfr,rt.[""L
Russell M. Blau
Jeffrey R. Strenkowski
Bingham McCutchen LLP
2020 K Street, N.W.
Washington, DC 20006
Tel: [phone]
Fax: [phone]
russell.blau@bingham. com
j effrey. strenkowski @bingham. com
Counsel for GC Pivotal, LLC d/blaGlobal Capacity
Dated: September 23, 2014
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
LIST OF EXHIBITS
Management Biographies
Formation Documents
Certificate of Good Standing
Financial Statements - CONFIDENTIAL, FILED
UNDER SEAL
Illustrative Tariffs / Price Lists
Applicant' s Staternent
EXHIBIT A
Management Biographies
F. Francis Naiafi - Founder and CEO
F. Francis Najafi is founder and CEO of Pivotal Group, a leading investment company focused
on private equity and real estate.
He founded the privately held firm 30 years ago, investing in landmark properties.
Pivotal Group's real estate investments have included major hotel properties including the
Century Plaza Hotel in Los Angeles, Class A commercial office properties such as 650
California Street in San Francisco, and community development projects, including Promontory
in Park City.
Drawn by the unrealized potential of well-managed middle-market companies with unique
assets, Mr. Najafi entered the private equity market in2002, and acquired Network Solutions, the
world's largest domain-name registry, in 2003. His acquisition philosophy is to initiate and
support management-led efforts to build long-term value through the adoption of disruptive
innovation, developing new products, expanding markets served and the continued optimization
of its cost structure.
Pivotal Group's private equity portfolio includes Global Capacity, the industry's first telecom
logistics company globally serving system integrators, carriers and enterprise clients.
Mr. Najafi completed his Bachelor of Science degree in engineering at Arizona State University
(ASU), followed by two Masters Degrees from Thunderbird - The School of Global
Management, and the University of Southern California (USC). At USC, he began his
entrepreneurial activities while a Ph.D. candidate in International Political Economy.
Over the past quarter century while heading Pivotal Group, Mr. Najafi devoted significant time
and resources to causes in the public interest. His commitment to community service spans the
world. Mr. Najafi is a board member of EastWest Institute, a global think-and-do tank that
devises innovative solutions to pressing security concerns; is a member of Urban Land Institute
and a governor of the ULI Foundation, which generates funding for research and public service
activities that enhance communities. Additionally, he is active in the World President's
Organization, a global organization focused on corporate responsibility and personal service and
Chief Executive's Organization (CEO), which represents 2,000 global leaders who represent
leading businesses around the world.
In Arizona, Mr. Najafi is a trustee of Thunderbird - The School of Global Management Institute,
and foundation board member of the Translational Genomics Research Institute, which employs
innovative advancements from the Human Genome Project.
Mr. Najafi's wide-ranging philanthropic interests include the Arizona Science Center, PARSA
Community Foundation, Public Affairs Alliance of Iranian Americans (PAAIA), Science
Foundation Aizona and Teach for America.
Jack Lodse - President
Jack Lodge is the President of Global Capacity, responsible for all aspects of strategy and
execution of the company. He has over 23 years of experience in information technology and
telecommunications. Mr. Lodge served as Global Capacity's COO since 2008, and has been a
key driver in the development of the company's industry-leading One Marketplace platform.
Under his leadership, the number of customers and suppliers participating in One Marketplace
has grown steadily, while the company has achieved significant improvements in gross margin
and EBITDA performance.
Mr. Lodge joined Global Capacity in 2006 via the acquisition of CentrePath, Inc., a privately-
held network management and engineering company where he served as General Manager, with
responsibility for all aspects of CentrePath's managed services business. Prior to joining
CentrePath's predecessor company, Giantloop, Mr. Lodge held several leadership positions in
the IT organization at Nortel Networks, where his responsibilities included network architecture
and strategy. Lodge joined Nortel via the 1998 acquisition of Bay Networks, where he held a
number of IT management positions. At Bay Networks, Mr. Lodge led the IT infrastructure
integration following the 1994 merger of Wellfleet Communications and Synoptics
Communications that created Bay Networks. Prior to Wellfleet lBay Networks, Mr. Lodge
owned and operated a regional network services and maintenance business, distributing and
supporting technology from multiple manufacturers. He began his career with AT&T in 1989 in
a sales role.
Mr. Lodge holds a B.A. from the College of the Holy Cross, and an M.B.A. from Northeastem
University. He played varsity lacrosse at Holy Cross, and remains active as a youth lacrosse
coach. Mr. Lodge currently resides in the Boston area with his family.
Richard Garner - Secretarv and Treasurer
Mr. Garner has been an integral part of Pivotal Group's management team for over ten years and
is responsible for overseeing the accounting and finance requirements of Pivotal and its portfolio
ventures.
As a Certified Public Accountant, he has more than twenty years of accounting, finance and
general business experience, including ten years as a consultant, auditor and business advisor
with the national CPA firms of Ernst & Young and Kenneth Leventhal.
He enjoys community service, including serving as an active youth leader with the Boy Scouts of
America to help shape the lives of America's youth.
Mr. Garner received a B.S. in accounting from Northern AizonaUniversity.
Ben Edmond - Chief Revenue Officer
Mr. Edmond is Chief Revenue Officer at Global Capacity, with responsibility for all aspects of
Global Capacity's revenue generation, including sales and marketing. Mr. Edmond has more
than 15 years of experience in the telecommunications industry, encompassing broad expertise in
the areas of sales, marketing and managerial experiences. Mr. Edmond joined Global Capacity in
2012. Prior to joining Global Capacity, Mr. Edmond was President of Sales and Marketing at
Fiberlight, where he led a national carrier and enterprise sales team in 15 metro markets and
conducted daily operations in customer and account development and service as well as
implernentation of product development and all marketing activities.
Prior to joining Fiberlight, Mr. Edmond owned Telecom Inventory, a consulting firm focusing
on services for large enterprises requiring better access and use of telecommunications
information. Mr. Edmond's telecom experience includes eight years with Xspedius
Communications (formerly ACSI), where he held several leadership positions.
Mr. Edmond holds a M.S. in Intemational Business from St. Louis University and a B.S. in
International Business & Finance from Northeastern University.
Phil Dovle - Chief Information Officer
Phil Doyle is Chief Information Officer of Global Capacity, responsible for the development and
management of all proprietary Global Capacity systems and data, including One Marketplace.
Mr. Doyle has over 15 years of experience in systems and data resource management,
successfully leading development teams and facilitating innovative software solutions for the
telecommunications industry. A co-founder of Magenta netlogic, he conceived and developed
the core systems that are the foundation of One Marketplace.
Prior to co-founding Magenta netlogic, Mr. Doyle held several positions, including Managing
Director, at LANalysis and netFusion Limited. He began his career with ICI in a network and
systems engineering role.
Mr. Doyle is an engineering graduate of Manchester Metropolitan University in the UK. He
resides in Manchester with his wife and two children, where he enjoys cycling, surfing and
walking.
Craie Maserkurth - Chief Knonledse Officer
Craig Magerkurth is Chief Knowledge Officer of Global Capacity, responsible for all systems
and data that power the business. He brings over l8 years of experience in developing, building
and managing complex, technology-based solutions for multiple industries. Most recently, he
served as Vice President of Technology Programs at the Rise Group, where he had oversight of
network and video surveillance programs such as Operation Virtual Shield, a Homeland Defense
initiative in Chicago.
Previously, Mr. Magerkurth served as Chief Information Officer at Universal Access, where he
managed the initial build-out of the Universal Transport Exchanges (UTX), and was instrumental
in the development and deployment of the Universal Information Exchange (UIX) and Universal
Solutions Exchange (USX). Through merger, these solutions ultimately became key components
of what today is Global Capacity's One Marketplace. Mr. Magerkurth has previously served in
executive roles for American Traffic Solutions and Mobility Technologies, in addition to serving
as Chief Information Officer for 20-20 Technologies. He began his career in the United States
Army Corp of Engineers.
Mr. Magerkurth is a graduate of the United States Military Academy at West Point, where he
served as President of his class. He holds a Masters of Science in Engineering Management from
the University of Missouri at Rolla. Mr. Magerkurth currently resides in the Austin, TX area with
his family.
John Nannenhorn - Senior Vice President of Finance
As Senior Vice President of Finance for Global Capacity, John Nannenhorn is responsible for
directing all aspects of Global Capacity's Finance, Accounting, Internal Control, Treasury,
Human Resources, Legal and Administrative affairs. He brings over 20 years of comprehensive,
in-depth, multi-industry experience.
Most recently, Mr. Nannenhorn served as Vice PresidenVController at AirCell, where he played
an integral role in building the company's Finance Department from the ground-up. He was
instrumental in defining and deploying core accounting processes as well as hiring, developing
and mentoring a top-performing financial team. Previously, Mr. Nannenhorn served as Executive
Director of Finance at ConferencePlus and held several executive roles within prominent
corporations including LANSA, Baan, SAP, Memorex Telex and Ryobi. As Chief Financial
Officer at LANSA, he was instrumental in implementing new accounting and reporting systems
as well as crafting and deploying mission-critical pricing and business model policies. Mr.
Nannenhom began his career as a Senior Accountant with Friedman, Eisenstein, Raemer &
Schwartz, LLP.
Mr. Nannenhorn holds a Masters of Business Administration in Finance and Bachelor of Science
in Accountancy from Northern Illinois University's College of Business in DeKalb, Illinois. He
currently resides in the greater Chicago area.
Jeremv Kissel - General Counsel
Jeremy Kissel is General Counsel at Global Capacity, responsible for all legal and compliance
functions of the company. Prior to joining Global Capacity in2012, Mr. Kissel worked for a
boutique communications law firm in Washington, D.C. and Chicago, assisting companies with
regulatory compliance, commercial transactions, and representing clients before federal
govemment agencies and the United States Congress. While serving as both an Attorney-
Advisor in the Policy Division of the Federal Communications Commission's Media Bureau and
Acting Legal Advisor to the Chief of the Media Bureau, Mr. Kissel was involved in all aspects of
regulatory proceedings at the agency.
Prior to joining the Federal Communications Commission, Mr. Kissel worked in a United States
Senate Leadership Office in Washington, D.C. From 2003 to 2006, Mr. Kissel was a litigator in
Miami, Florida, where he concentrated his practice on insurance defense, insurance coverage,
and bad faith matters.
Mr. Kissel holds a Bachelor of Science (B.S.) from Florida State University, a Juris Doctor (J.D.)
from Nova Southeastem University, Shepard Broad Law Center, and a Master of Laws (LL.M)
from American University's Washington College of Law. Mr. Kissel resides in Chicago with his
wife.
EXHIBIT B
Formation Documents
lDefowore PAG1g 7
tfre first State
Z, ,TEFFXAY W. EULITOCK\ SEGREIIARY Og S'ltAYE Og lXgE STAIrE Og
DELAWARE, DO EBREBY CERIEIfi| lrEE AlrrACffiD AXE TRAE aND CORRECT
COPIES OE ALIJ DOCUMENfS ON EILE Og nGC PMIIALT LIIC" AS NECEMD
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CER3IJrZCAYaS ARE TM ONLY CEATTFZCAITES ON RECORD OF TEg
4825895 87A08
770076964
W BulloElq Secretary ofState: 8518343
DATE: 01-25-L1
Yott e.rl varlfy thi.s certificata orrliroat coz?, delalliare, gov/autjaftt. shtmi
St3't& of De.larraseSectet#,rlt ot StatpDiutsion of ComrationsDe.I,jvered A6:73 /ltl 05/20/2010Etr,ED o5:20 pt{ o5/ZA/2070sRV 10054542A - 4825895 EtrE CER'T' TT'ICATE OF' FORMATI ON
OF
cc PIV0TAL,LLC
'fhe undersigned, an authorized natural person, for the purpose of forming a
limited liability company? under the provisions and subject to the reguirements ofthe State of
f)elaware fuarticularly Chapter 18, Title 6 of the Delaware Code and the acts ameudatory thereof
and supplemental thereto, and known, identified, and referred to as the "Delaware Limited
Liability Company Act'), hereby certifies that:
IIRST: The name ofthe limited liability company (hereinafter called the
"limited liability company") is:
GC Pivotal, LI,C
SECOND: The addrsss of the registered office and the name and the addrcss of
the registered agent of the limited liability company required to be maintained by Section 18-104
of the Delaware Limited Liability Company Act are:
fffi"e1ffiilffiffrx,ili*
Wilminglon, New Castle County, Delaware 19808
THIRI): This Certificate of Formation shall be effective upon filing.
Executed on lr4ay 20,2010-
/s/ Eleanor Romanelli
Eleanor Romanelli
Authorized Person
LIMITED LIABILITY COMPANY AGREEMENT
OF
GC PIVOTAL, LLC
This LIMITED LIABILITY COMPANY AGRBEMENT (this "Agreement")
of GC Pivotal, LLC (the "eq4pgny") is effective as of May 20,2010 and is entered into by
Pivotal Global Capacity, LLC, an Arizona limited liability company, as the sole member (the
"Melrber").
l. f'grmation of Limited Liabilitv Company. The Cornpany is hereby formed
as a iimited liability company pursuant to the provisions of the Delaware Limited Liability
Company Act, 6 Del. C $18-101, et seq., as it may be amended from time to time, and any
successor to such statute (the "1\c1"). The rights and obligations of the Member (as defined
below) and the administration and termination of the Company shall be governed by this
Agreement and the Act. This Agreement shall be considered the "Limited Liability Company
Agreement" of the Company within the meaning of Section 18-101(7) of the Act. To the extent
this Agreement is inconsistent in any respect with the Act, to the fullest extent permitted by the
Act, this Agreement shall control. Eleanor Romanelli is hereby designated as an "authorized
person" within the meaning of the Act, and has executed, delivered and filed the Certificate of
Formation of the Company with the Secretary of State of the State of Delaware (such fiiing being
hereby approved and ratified in all respects), Upon the filing of the Certilicate of Formation
with flre Secretary of State of the State of Delaware, her powers as an "authorized person"
ceased, and the Member thereupon became the designated "authorized person" and shall
continue as the designated "authorized person" within the meaning of the Act. The Member, as
an authorized person, within the rneaning of the Act, shall execute, deliver and file, or cause the
execution, delivery and filing of, all cefiificates (and any amendments andior restatements
thereof) required or permitted by the Act to be filed in with the Secretary of State of the State of
Delaware. The Member shall execute, deliver and file, or cause the execution, delivery and
filing of any certificates (and any amendments and/or restatements thereof) necessary for the
Company to qualify to do business in any other jurisdiction in which the Company may wish to
conduct business.
2. Me.,fnbers. Pivotal Global Capacity, LLC is hereby admitted as the sole
member of the Company upon its execution and delivery of this Agreement.
3. Purposg The purpose of the Company is to engage in any and all other
lawful businesses or activities in which a limited liability company may be engaged under
applicable law (including, without limitation, the Act).
4. NarBe. The name of the Company shall be GC Pivotal, LLC.
5. Registered Aeent and PJincipaf Qffice. The registered agent of the
Company in the State of Delaware shall be Corporation Service Company whose address is 2711
Centerville Road, Suite 400, Wihnington, New Castle County, Delaware 19808. The mailing
address of the Company shall be 3200 East Camelback Road, Suite 295, Phoenix, fuizona
85018. The Company may have such other offices as the Member may designate fiom time to
time,
6. Term of Company. The Company shall commence on the date set forth as
the "effective date" as set forth in a Certificate of Formation of the Company that has been
properly filed with the Secretary of State of the State of Delaware and shall continue in existence
in perpetuity unless its business and affairs are earlier wound up following dissolution at such
time as this Agreement may specify.
7. Management of Compa{ry. Except to the extent delegated to the Officers
of the Company pursuant to Section 8 below, all decisions relating to the business, affairs and
properties of the Company shall be made by the Member.
8. Designatjon of 9fficers.
(a) The Member m^y, from time to time, designate officers of the Company
and delegate to such officers such authority and duties as the Member may deem advisable (the
"Offipers") and may assign titles (including, without limitation, Chairman, Chief Executive
Officeq Chief Financial Officer, Chief Operating Officer, president, vice-president, secretary
and/or treasurer) to any such Officer. Unless the Member otherwise determines, if the title
assigned to an Officer of the Company is one commonly used for officers of a business
corporation formed under the Delaware General Corporation Law, then the assignment of such
title shall constitute the delegation to such Officer of the authority and duties that are customarily
associated with such office. Any number of titles may be held by the same Officer. Any Officer
to whom a delegation is made (including any delegation contained in an employment agreement,
subject to the limitations contained therein) shall serve in the capacity and have such powers as
delegated unless and until such delegation is revoked by the Member in whole or in part for any
reason or no reason whatsoever, with or without cause, or such Officer resigns. The initial
Officers of the Company are set fo*h on Schedule A hereto.
(b) In addition to such other duties as may be delegated to any Offrcer of the
Company, the President of the Cornpany shall be the most senior officer of the Company and
shall, subject to the control of the Member, have general supervision, direction and control of the
business and officers of the Comparry.
9. Reimbursemenu Compensation. Each Officer shall be reimbursed for any
actual costs reasonably incurred in connection with such Offrcer's service as an otTicer of the
Company.
10. Li{nitatipn of Lipbility: Indemnificationl Duties.
(a) To the fullest extent permitted by law, none of (i) the Member (in its
capacity as Member), (ii) the affiliates, agents, officers, partners, employees, representatives,
directors, members or shareholders of the Member or the Company and (iii) each former officer,
director, employee, or member (collectively, the "Indenmiteqs") acting in accordance with this
Agreernent shall be liable, responsible, or accountable, in damages or otherwise, to the Company
or the Member thereof for doing any act or failing to do any act, whether before, on or after the
date hereof, the effect of which may eause or result in loss or damage to the Company or the
Member if: (A) the act or failure to act of such Indemnitee was in good faith, in a maffier it
reasonably believed to be within the scope of such Indemnitee's authority and in a manner it
reasonably believed to be in, or not inconsistent with, the best interest of the Company; and (B)
the conduct of such Person did not constitute fraud, willful misconduct, gross negligence or a
material breach of this Agreement.
(b) The Cornpany shall defend, indemnify and hold harmless any Indemnitee
to the greatest extent permitted by law against any and ali liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, proceedings, costs, expenses and disbursements of
any kind or nature whatsoever, and all costs of investigation in connection therewith, as a result
of any claim, threatened action or legal proceeding by any person (including, without limitation,
by or through the Company, any subsidiary and/or the Member), or otherw'ise imposed upon or
incurred by such Indemnitee, relating to the performance or nonperformance of any act
concerning the activities of the Company or a subsidiary, whether before, on or after the date
hereof, if: (i) the act or failure to act of such Indemnitee was in good fait[ within the scope of
such lndemnitee's authority and in a manner it reasonably believed to be in, or not inconsistent
with, the best interest of the Company or such subsidiary; and (ii) the conduct of such
Indemnitee did not constitute fraud, willful misconduct, gross negligence or a rnaterial breach of
a material provision of this Agreement. The indemnification authoriz-ed by this subsection (b)
shall include any judgment, award, settlement, the payment of reasonable attorneys' fees and
other expense (not limited to taxable costs) incurred in settling or defending any claims,
threatened action or finally adjudicated legal proceeding.
(c) From time to time, as requested by an Indemnitee hereunder, such
attorneys' fees and other expenses shall, unless the Member deternrines that the Indemnitee has
failed to meet the standards set forth in subsection (b) (taking into account, among other things,
the availability of securrty for any repayment obligation on the part of the Indemnitee), be
advanced by the Company prior to the final disposition of such claims, actions or proceedings
upon receipt by the Company of an undertaking, rebsonably acceptable to the Member, by or on
behalf of such Indemnitee to repay such amounts if it shall be determined that such Indemnitee is
not entitled to be indernnified as authorized hereunder.
(d) Any indemnification by the Company provided hereunder shall be
satisfied solely out of assets of the Company as an expense of the Cornpany (and the proceeds of
any directors and of{icers insurance).
(e) The provisions of this Section 10 are for the benefit of the Indemnitees
and their estate and heirs and shall not be deemed to create any rights for the benefit of any other
person.
(0 The provisions of this Section 1 0 shall survive the termination of this
Agreement. Any termination or amendment of tliis Section 10 shall not adversely affect any
right or protection hereunder of any Indemnitee in respect of any act or omission prior to the
time of such termination or amendment.
I 1. Distributions. Each distribution of cash or other property by the Company
shall be made 100% to the Member.
12. Dissolution and Winding Up. The Company shall dissolve and its
business and affairs shall be wound up upon (i) the written consent of the Member, (ii) any time
there are no members of the Company unless the Company is continued in accordance with the
Act, or (iii) the entry of a decree ofjudicial dissolution under Section 18-802 of the Act.
13. Amendments. This Agreement may be amended or modified from time to
time only by a written instrument executed by the Member,
14. Geverning Law. The validity and enforceability of this Agreement shall
be governed by and construed in accordance with the laws of the State of Delaware without
regard to otherwise goveming principles of conflicts of law.
ISTGNATURE PAGE FOLLOWSI
The undersigned being the sole Member of the Company, does lrereby adopt this
Agreement as of the date timt above written.
PryOTAL GLOBAL CAPACITY, LLC
[Signaturc Pagc to tlrc l..iraitotl Liability Conlrany Agrcentcnt of GC Pivotnl, LLC]
EXHIBIT C
Certificate of Good Standing
9t1612014 IDSOS CERTIFICATE OF EXISTENCE
State of ldaho
Office of the Secretary of State
CERTIFICATE OF EXISTENCE
OF
GC PMTAL, LLC
File NumberW-93745
I, BEN YSURSA, Secretary of State of the State of Idaho, hereby certi$ that I am the custodian of
the limited liability company records of this State.
I FURTHER CERTIFY That the records of this office show that the above-named limited liability
company was organized under the laws of DELAWARE and filed for authorization to transact business
in Idaho on610112010.
I FURTHER CERTIFY That the limited liability company's certificate of authority has not been
canceled.
Dated: 911612014 2:59 PM
{1,*'?eb^aA-
SECRETARY OF STATE
Authentic Access Idaho Document ( htto://www.accessidaho.org/public/oortal/authenticate.html )
Tag: b5ae5f5fflld74087b3e56fe7c90ld6d2'148bf24081bd603855bcbffe306997972e92101860b227c3
https Jlwww. a ccessidaho. org/securer/sodcorp/ccrt.htrnl 111
EXHIBIT F
Applicant's Statement
STATE OF ARIZONA
COUNTY OF MARICOPA
VERIFICATION
I, Richard Gamer, state that I am Secretary and Treasurer of GC Pivotal, LLC; that I am
authorized to make this Verification on behalf of GC Pivotal,LLC; that the foregoing filing was
prepared under my direction and supervision; and that the contents are true and correct to the
best of my knowledge, information, and belief.
$
$
$
Swom and subscribed before me this I 1 day of September,2OI4.
Mycommissionexpire, Ptnl I (, a Ot%
JENNIFER CASEY
NOTARY PUBLIC _ ARIZONA
MARICOPA COUNTY
My Commission Expires
May 15,2018
Secretary and Treasurer
GC Pivotal,LLC