EXHIBIT 2
SECOND AMENDED AND RESTATED
JOINT VENTURE FORMATION AGREEMENT
dated as of January 31, 1996
by and between
SPRINT CORPORATION
TELE-COMMUNICATIONS, INC.
COMCAST CORPORATION
and
XXX COMMUNICATIONS, INC.
TABLE OF CONTENTS
SECTION 1. DEFINITIONS..................................................... 1
1.1 Definitions........................................................ 1
1.2 Additional Definitions............................................. 4
1.3 Terms Generally.................................................... 4
SECTION 2. FORMATION OF PIONEERCO; CERTAIN AGREEMENTS
OF THE PARTIES................................................. 5
2.1 Formation of PioneerCo............................................. 5
2.2 Effectuation of Agreements......................................... 5
2.3 Exclusivity........................................................ 6
SECTION 3. CERTAIN AGREEMENTS OF COX....................................... 7
3.1 Maintenance of LA Pioneer Preference License....................... 7
3.2 Advice of Changes; Government Filings; Petitions to
Deny............................................................... 8
SECTION 4. CONDITIONS TO THE PIONEERCO CLOSING............................. 8
SECTION 5. THE PIONEERCO CLOSING........................................... 9
5.1 PioneerCo Closing.................................................. 9
5.2 Bring-Down Certificates............................................ 9
5.3 Costs and Expenses................................................ 10
SECTION 6. TERMINATION.................................................... 10
SECTION 7. REPRESENTATIONS AND WARRANTIES REGARDING
THE PARTIES.................................................... 10
7.1 Due Incorporation or Formation; Authorization of
Agreements........................................................ 10
7.2 No Conflict; No Default........................................... 10
7.3 Litigation........................................................ 11
7.4 Finders Fees...................................................... 11
SECTION 8. REPRESENTATIONS AND WARRANTIES OF COX
REGARDING THE LAW PIONEER PREFERENCE LICENSE................... 11
8.1 LA Pioneer Preference License..................................... 12
8.2 Compliance with Laws.............................................. 12
8.3 Litigation........................................................ 12
8.4 Title to the LA Pioneer Preference License........................ 12
8.5 Xxx Enterprises................................................... 12
SECTION 9. EFFECT OF REPRESENTATIONS, WARRANTIES
AND COVENANTS.................................................. 13
SECTION 10. MISCELLANEOUS.................................................. 13
10.1 Notices.......................................................... 13
10.2 Construction..................................................... 13
10.3 Time............................................................. 13
10.4 Table of Contents; Headings...................................... 13
10.5 Severability..................................................... 13
10.6 Incorporation by Reference....................................... 14
10.7 Further Action................................................... 14
10.8 Governing Law.................................................... 14
10.9 Counterpart Execution............................................ 14
10.10 Specific Performance............................................ 14
10.11 Entire Agreement................................................ 15
10.12 Parties in Interest; Limitation on Rights of
Others.......................................................... 15
10.13 Waivers; Remedies............................................... 15
10.14 Jurisdiction; Consent to Service of Process..................... 15
10.15 Waiver of Jury Trial............................................ 16
EXHIBITS
Exhibit 1.1(a) PioneerCo Affiliation Agreement Term Sheet
Exhibit 1.1(b) PioneerCo Term Sheet
SCHEDULES
Schedule 8.3 Litigation
Schedule 10.1 Addresses of the Parties for Notices
This SECOND AMENDED AND RESTATED JOINT VENTURE FORMATION AGREEMENT (the
"Agreement") is entered into as of the 31st day of January, 1996, among SPRINT
CORPORATION, a Kansas corporation ("Sprint"), TELE-COMMUNICATIONS, INC., a
Delaware corporation ("TCI"), COMCAST CORPORATION, a Pennsylvania corporation
("Comcast"), and XXX COMMUNICATIONS, INC. (formerly known as Xxx Cable
Communications, Inc.), a Delaware corporation ("Cox").
W I T N E S S E T H:
WHEREAS, Sprint, TCI, Comcast and Cox entered into that certain Joint
Venture Formation Agreement, dated as of October 24, 1994 (as amended by that
certain Amended and Restated Joint Venture Formation Agreement, dated as of
March 28, 1995, the "Prior Agreement"), pursuant to which the parties agreed
to form certain entities to (i) provide national wireless telecommunications
services, including the acquisition and development of PCS licenses, (ii)
provide nationwide competitive local telecommunications services and (iii)
develop a PCS wireless system in the Los Angeles MTA through a separate
partnership, and to take certain actions relating to the foregoing;
WHEREAS, as a result of the formation of WirelessCo, L.P., a Delaware
limited partnership ("WirelessCo"), on October 24, 1994, and the formation of
MajorCo, L.P., a Delaware limited partnership ("MajorCo"), and NewTelco, L.P.,
a Delaware limited partnership ("NewTelco"), on March 28, 1995, and subsequent
agreements among the parties, the parties have satisfied or determined to
terminate and/or waive certain of their obligations under the Prior Agreement;
and
WHEREAS, in connection with the execution and delivery of that certain
Amended and Restated Agreement of Limited Partnership of MajorCo, L.P. of even
date herewith (the "MajorCo Partnership Agreement") the parties desire to
amend and restate the Prior Agreement in order to affirm and memorialize their
respective remaining obligations under the Prior Agreement that have not been
terminated and/or waived as a result of the execution of this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements herein contained, and in order to set forth the respective rights,
obligations and interests of the Parties and their Affiliates to one another,
the Parties, intending to be bound, agree as follows:
SECTION 1. DEFINITIONS
1.1 Definitions.
Capitalized words and phrases used in this Agreement have the following
meanings:
"Affiliate" means, with respect to any Person, any other Person
that directly or indirectly through one or more intermediaries controls, is
controlled by, or is under common control with such Person. For purposes of
this definition, the terms "controls," "is controlled by" or "is under common
control with" shall mean the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a person or
entity, whether through the ownership of voting securities, by contract or
otherwise.
"Agreement" means this Second Amended and Restated Joint Venture
Formation Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time.
"Comcast" means Comcast Corporation, a Pennsylvania corporation.
"Cox" means Xxx Communications, Inc. (formerly known as Xxx Cable
Communications, Inc.), a Delaware corporation.
"Cox Pioneer Partner" means Cox Pioneer Partnership, a general
partnership to be formed by a Subsidiary of Cox and a Subsidiary of Xxx
Enterprises.
"Entity" means any firm, corporation, company, partnership, group,
trust, joint venture, association, Governmental Authority or other legal
entity or organization.
"FCC" means the Federal Communications Commission or any successor
agency or entity performing substantially the same functions.
"Governmental Authority" means any foreign, federal, state or
local court, administrative agency, board, bureau or commission or other
governmental department, authority or instrumentality.
"LA Pioneer Preference License" means the 00 XXx "X" xxxxx PCS
license granted to Cox on December 14, 1994, for the MTA encompassing Los
Angeles and San Diego, California, which MTA is identified in the FCC Public
Notice regarding the PCS Auction as Market No. M-2 (Report No. AUC-94-04,
Auction No. 4).
"License" means any license, ordinance, authorization, permit,
certificate, variance, exemption, order, franchise or approval, issued or
granted by a Governmental Authority, domestic or foreign.
"Lien" means any lien, pledge, claim, encumbrance, mortgage or
security interest in real or personal property.
"MajorCo" has the meaning set forth in the preamble to this
Agreement.
"MajorCo Partnership Agreement" has the meaning set forth in the
preamble to this Agreement.
"Material Adverse Effect" means, with respect to any Person, a
material adverse effect on the business, assets, liabilities, results of
operations or condition (financial or otherwise) of such Person and its
Subsidiaries, taken as a whole, or, with respect to a Party only, on the
ability of such Party to perform its obligations in any material respect under
this Agreement.
"NewTelco" has the meaning set forth in the preamble to this
Agreement.
"Parties" means Comcast, Cox, Sprint and TCI, and "Party" means
Comcast, Cox, Sprint or TCI, as the context may require.
"PCS Auction" means the series of simultaneous multiple round
auctions for broadband PCS licenses to be conducted by the FCC under the
authority of Section 309(j) of the Communications Act, 47 U.S.C. Section
309(j) (1993), in accordance with the rules promulgated thereunder by the FCC.
"Permitted Lien" means (a) a statutory Lien not yet due or payable
or (b) a Lien that does not materially detract from the value, or interfere
with the use of, the assets subject thereto or affected thereby or otherwise
materially impair the business operations being conducted or proposed to be
conducted with such assets.
"Person" means any individual or Entity.
"PioneerCo" means a Delaware limited partnership proposed to be
formed by WirelessCo and Cox Pioneer Partner for the purpose of holding and
developing a PCS system using the LA Pioneer Preference License.
"PioneerCo Affiliation Agreement Term Sheet" means the term sheet
attached hereto as Exhibit 1.1(a).
"PioneerCo Partnership Agreement" means the agreement of limited
partnership of PioneerCo contemplated by the PioneerCo Term Sheet.
"PioneerCo Term Sheet" means the term sheet attached hereto as
Exhibit 1.1(b).
"Sprint" means Sprint Corporation, a Kansas corporation.
"Sprint Brand" means the trademark "Sprint" together with the
related "Diamond" logo.
"Strategic Venture" means any Entity or alliance, joint
arrangements, undertakings, investments or other understandings.
"Subsidiary" of any Person means an Entity (i) of which more than
fifty percent (50%) of the outstanding shares or securities are owned or
controlled, directly or indirectly through one or more Subsidiaries, by such
Person, and the shares or securities so owned entitle such Person and/or
Subsidiaries to elect at least a majority of the members of the board of
directors or other managing authority of such Entity or (ii) which does not
have outstanding shares or securities, as may be the case in a partnership,
joint venture or unincorporated association, but of which more than fifty
percent (50%) (by value) of the ownership interest is owned or controlled,
directly or indirectly through one or more Subsidiaries, by such Person, and
in which the ownership interest so owned entitles such Person and/or
Subsidiaries to make the decisions for such Entity, provided, in each case,
that such Entity shall be deemed to be a Subsidiary only so long as such
ownership or control exists.
"TCI" means Tele-Communications, Inc., a Delaware corporation.
"Wireless Business" has the meaning given such term in the MajorCo
Partnership Agreement.
"WirelessCo" has the meaning set forth in the preamble to this
Agreement.
1.2 Additional Definitions.
Defined Term Defined in
------------ ----------
"Adverse Proceedings" Section 3.1
"Agents" Section 2.3(a)
"Closing Dates" Section 5.3
"Xxx Enterprises" Section 3.1
"PioneerCo Closing" Section 5.1
"PioneerCo Closing Date" Section 5.1
"PioneerCo Termination Date" Section 6
"Proposal" Section 2.3(a)
"Representatives" Section 2.3(a)
1.3 Terms Generally.
The definitions in Section 1.1 and those contained elsewhere in this
Agreement shall apply equally to both the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun shall include
the corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be deemed to be followed by the phrase
"without limitation". Any reference to "this Agreement" shall include the
Exhibits and Schedules hereto. The words "herein", "hereof" and "hereunder"
and words of similar import refer to this Agreement (including the Exhibits
and Schedules) in its entirety and not to any part hereof unless the context
shall otherwise require. All references herein to Sections, Exhibits and
Schedules shall be deemed references to Sections of, and Exhibits and
Schedules to, this Agreement unless the context shall otherwise require.
Unless the context shall otherwise require, any references to any agreement or
other instrument or statute or regulation are to it as amended and supplemented
from time to time (and, in the case of a statute or regulation, to any
corresponding provisions of successor statutes or regulations). Any reference
in this Agreement to a "day" or number of "days" shall be interpreted as a
reference to a calendar day or number of calendar days. If any action or
notice is to be taken or given on or by a particular calendar day, and such
calendar day is not a business day then such action or notice shall be
deferred until, or may be taken or given on, the next business day.
SECTION 2. FORMATION OF PIONEERCO;
CERTAIN AGREEMENTS OF THE PARTIES
2.1 Formation of PioneerCo.
Subject to the satisfaction of the conditions set forth in Section 4
hereof and to the Parties' mutual agreement as to the definitive terms and
conditions of the applicable agreements as provided in this Agreement, the
Parties agree to cause PioneerCo to be formed by the execution and delivery by
the applicable parties of the PioneerCo Partnership Agreement and the other
agreements contemplated by the PioneerCo Term Sheet and the PioneerCo
Affiliation Agreement Term Sheet to be executed and delivered in connection
therewith and the consummation of the transactions contemplated thereby to
occur on the PioneerCo Closing Date.
2.2 Effectuation of Agreements.
For a period commencing on the date of this Agreement and ending on the
earlier to occur of the PioneerCo Termination Date or the PioneerCo Closing
Date, except as expressly contemplated or permitted hereby (or by the
PioneerCo Term Sheet) or to the extent that all other Parties shall otherwise
consent in writing, which consent shall not be unreasonably withheld, each of
the Parties agrees to negotiate in good faith and, subject to the Parties'
mutual agreement as to the definitive terms and conditions thereof and to the
other applicable conditions set forth in Section 4, to cause Cox Pioneer
Partner (in the case of Cox) or WirelessCo (in the case of each Party) to
enter into the PioneerCo Partnership Agreement, which shall incorporate terms
substantially similar to those contemplated by the PioneerCo Term Sheet and
each of the other agreements contemplated in such term sheet, in each case
with such modifications and additions as the Parties may mutually agree, and,
subject to the execution and delivery of the PioneerCo Partnership Agreement
by each of WirelessCo and Cox Pioneer Partner, Cox will cause the LA Pioneer
Preference License to be contributed to PioneerCo in accordance with the terms
and conditions set forth in the PioneerCo Partnership Agreement and the
MajorCo Partnership Agreement. The Parties acknowledge that the term sheets
attached hereto are not exhaustive and that additional provisions which are
not inconsistent with the terms set forth in such term sheets will be
required, and the Parties agree to negotiate in good faith with respect to
such additional provisions. In addition, subject to the foregoing and to
applicable fiduciary duties, each of the Parties otherwise will use all
commercially reasonable efforts to take, or cause to be taken, all other
actions, and to do, or cause to be done, all other things necessary, proper or
advisable to carry out its obligations under this Agreement and to consummate
and make effective the transactions contemplated hereby, including the
following:
(i) as soon as practicable following the execution of
this Agreement, to make all applications and filings and to use
all commercially reasonable efforts to obtain all other
authorizations and consents required to be obtained by the
Parties on or before the PioneerCo Closing Date to enable the
Parties to consummate the transactions contemplated by this
Agreement;
(ii) in the event any changes in the structure or the
terms of the transactions contemplated by this Agreement are
required in order to facilitate obtaining the authorizations
and consents required in connection with the consummation of
such transactions, to take all commercially reasonable steps
necessary to accommodate such changes to the extent they would
not adversely affect the Parties' rights or obligations
hereunder or have an adverse effect on the proposed business or
prospects of PioneerCo or such Party's proposed investment
therein; and
(iii) in the event any claim, action, suit, investigation
or other proceeding by any Governmental Authority or other
Person is commenced which questions the validity or legality of
any of the transactions contemplated hereby or any injunction
or other order is issued in any such proceeding, to cooperate
with the other Parties regarding the defense of such
proceedings and the removal of any such impediment to the
consummation of such transactions and to use all commercially
reasonable efforts to have such injunction or other order
dissolved.
2.3 Exclusivity.
(a) General. For a period commencing on the date of this
Agreement and ending on the earlier to occur of the PioneerCo Termination
Date or the PioneerCo Closing Date:
(i) Each of the Parties agrees to, shall cause its
Subsidiaries and the officers, directors and employees of such
Party and its Subsidiaries (collectively, the "Agents") to, and
shall use its best efforts to cause its attorneys, accountants,
investment bankers and other representatives acting on its behalf
(collectively, the "Representatives") to, refrain from
participating in any discussions with any other Person or group
with a view toward the creation of any Strategic Venture (other
than PioneerCo), which would interfere with or be inconsistent
with the ability of WirelessCo and Cox Pioneer Partner to enter
into the PioneerCo Partnership Agreement, or the ability of the
Parties to cause the consummation of the transactions contemplated
by the PioneerCo Term Sheet on a basis consistent with the intent
and purpose of this Agreement and the discussions among the
Parties (a "Proposal"); and
(ii) Each of the Parties hereto will not, will cause its
Subsidiaries and Agents not to, and will use its best efforts to
cause its Representatives not to, directly or indirectly, (i)
solicit, initiate or knowingly encourage the initiation of
inquiries or proposals or offers from any Person or group as
defined in Section 13(d)(3) of the Securities Exchange Act of
1934, concerning a Proposal, or (ii) provide any confidential
information to, or otherwise cooperate with or assist or
participate in any effort by, any such Person or group relating to
a Proposal.
(b) Third Party Discussions. Nothing contained herein
shall limit or restrict the rights of any Party (or its respective
Affiliates, Agents and Representatives) to continue to engage in
discussions or negotiations relating to the transactions contemplated
by this Agreement or the PioneerCo Term Sheet.
SECTION 3. CERTAIN AGREEMENTS OF COX
Cox hereby covenants and agrees that from the date hereof until the
earlier to occur of the PioneerCo Termination Date or the PioneerCo Closing
(except as expressly contemplated or permitted by this Agreement or to the
extent that the other Parties shall otherwise consent in writing, which
consent shall not be unreasonably withheld):
3.1 Maintenance of LA Pioneer Preference License.
Cox shall take or cause to be taken and do or cause to be done all
commercially reasonable actions necessary, proper or advisable under
applicable law to maintain the LA Pioneer Preference Licence and shall
cooperate fully with the FCC in connection with any conditions or obligations
on the part of Cox to retain the LA Pioneer Preference License; provided,
however, that Cox shall not be required to accept a condition that imposes any
undue burden or restriction or take any action that would have a Material
Adverse Effect on Cox or Xxx Enterprises, Inc., a Delaware corporation ("Xxx
Enterprises"). Such actions shall include preparing and pursuing all
necessary regulatory filings, submissions, approvals and waivers. In the
event that any claim, action, suit, investigation or other proceeding by any
Governmental Authority or other Person is commenced that questions the
validity or legality of the right of Cox to hold and utilize the LA Pioneer
Preference License or that limits in any way the rights of Cox under the LA
Pioneer Preference License or seeks damages in conjunction therewith
(collectively, "Adverse Proceedings"), and, if an injunction or other order is
issued in any such Adverse Proceeding, Cox shall use all commercially
reasonable efforts to have such injunction or other order dissolved, and to
cooperate regarding the removal of any such other impediment to the right of
Cox to hold and utilize the LA Pioneer Preference License; provided, however,
that Cox shall not be required to take any action that would have a Material
Adverse Effect on Cox or Xxx Enterprises.
3.2 Advice of Changes; Government Filings; Petitions to Deny.
Cox shall promptly advise MajorCo orally and in writing of any change
or event known to Cox having, or which insofar as can reasonably be
foreseen, could have a material adverse effect on the ability of Cox to
retain the LA Pioneer Preference License. Cox shall promptly provide
MajorCo with copies of all filings made by it or any Affiliate of Cox with
any Governmental Authority in connection with the LA Pioneer Preference
License. Cox shall promptly provide MajorCo with copies of all petitions
to deny or similar petitions filed with the FCC or any other Governmental
Authority by any Person challenging or questioning the right of Cox or any
Affiliate of Cox to hold or utilize the LA Pioneer Preference License or
otherwise in connection with this Agreement and the transactions
contemplated hereby.
SECTION 4. CONDITIONS TO THE PIONEERCO CLOSING
The obligations of each of the Parties under this Agreement to be
performed or complied with at the PioneerCo Closing are subject to the
satisfaction, on or prior to the PioneerCo Closing Date, of the following
conditions, compliance with which or the occurrence of which may be waived
in whole or in part in writing by each of the Parties:
(a) PioneerCo Partnership Agreement and Related Agreements.
(i) The Parties shall have mutually agreed as to the definitive terms of
the PioneerCo Partnership Agreement and each of the other agreements
contemplated thereby to be executed and delivered in connection therewith,
and (ii) each of the parties to the PioneerCo Partnership Agreement shall
have entered into the PioneerCo Partnership Agreement and each of the
parties to the other agreements contemplated thereby to be executed and
delivered in connection therewith shall have entered into such other
agreements.
(b) Representations and Warranties. The representations and
warranties of each of the Parties contained in Sections 7 and 8 of this
Agreement shall be true and correct in all material respects as of the
PioneerCo Closing Date as if made as of such date.
(c) Covenants. Each of the Parties shall have performed and
satisfied in all material respects the agreements, covenants and conditions
of this Agreement to be performed or satisfied by it at or prior to the
PioneerCo Closing.
(d) Approvals. The Parties shall have received all material
consents, approvals and Licenses of any Governmental Authority required in
connection with the consummation of the transactions to be effected at the
PioneerCo Closing.
(e) Absence of Injunctions. No preliminary or permanent
injunction or other order, decree or ruling issued by a Governmental
Authority, nor any statute, rule, regulation or executive order promulgated
or enacted by any Governmental Authority shall be in effect, in any case
that enjoins or delays in any material respect the consummation of the
transactions to be effected at the PioneerCo Closing or imposes any
material restrictions or requirements thereon or on any of the Parties in
connection therewith.
(f) Holder of the LA Pioneer Preference License. Cox shall be
the authorized legal holder of the LA Pioneer Preference License, free and
clear of all Liens (except for any Liens relating to Xxx'x deferred payment
obligations).
(g) Legal Opinion. WirelessCo shall have received an opinion
from Dow, Xxxxxx & Xxxxxxxxx, or other recognized legal counsel acceptable to
WirelessCo, that the LA Pioneer Preference License will constitute an
"amortizable section 197 intangible" amortizable by PioneerCo for federal
income tax purposes pursuant to section 197(a) of the Code.
SECTION 5. THE PIONEERCO CLOSING
5.1 PioneerCo Closing.
The execution of the PioneerCo Partnership Agreement (and of each of the
agreements contemplated thereby to be executed in connection therewith) and
the consummation of the transactions contemplated thereby to occur at the time
of such execution (the "PioneerCo Closing"), shall take place at the offices
of King & Spalding, 191 Peachtree Street, Atlanta, Georgia, or such other
location as the Parties may agree, within five (5) days following the
satisfaction of the conditions contained in clause (i) of Section 4(a) and in
Section 4(d) (the "PioneerCo Closing Date"), assuming that the other
conditions to closing set forth in Section 4 are satisfied or are effectively
waived as of the PioneerCo Closing Date.
5.2 Bring-Down Certificates.
(a) Closing. On the PioneerCo Closing Date, Cox shall provide
to each other Party a certificate dated the PioneerCo Closing Date
certifying that the representations and warranties made by Cox contained in
Section 8 are true and correct in all material respects as of the PioneerCo
Closing Date and that the covenants and conditions to be performed or
satisfied by Cox contained in Sections 3 and 4, respectively, at or prior
to the PioneerCo Closing Date have been so performed or satisfied in all
material respects.
(b) No Effect. The delivery of the certificates required by
this Section 5.2 shall in no way diminish the representations, warranties and
covenants made in this Agreement.
5.3 Costs and Expenses.
Each Party shall pay all costs and expenses incurred by it in connection
with the negotiation, preparation, execution and delivery of this Agreement
and the PioneerCo Partnership Agreement, and of each of the agreements
contemplated to be executed in connection therewith, including all fees and
out-of-pocket expenses of counsel for such Party with respect thereto.
SECTION 6. TERMINATION
The obligations of the Parties hereunder with respect to the
PioneerCo Closing shall terminate as of the date (the "PioneerCo
Termination Date") of the earlier to occur of (i) the unanimous written
consent of the Parties or (ii) the dissolution of MajorCo in accordance
with Section 14.1 of the MajorCo Partnership Agreement.
SECTION 7. REPRESENTATIONS AND WARRANTIES
REGARDING THE PARTIES
Each Party hereby represents and warrants to the other Parties that:
7.1 Due Incorporation or Formation; Authorization of Agreements.
Such Party is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and has the
corporate power and authority to own its property and carry on its business as
owned and carried on at the date hereof. Such Party is duly licensed or
qualified to do business and in good standing in each jurisdiction in which
the failure to be so licensed or qualified would have a Material Adverse
Effect on such Party. Such Party has the corporate power and authority to
execute and deliver this Agreement, to perform its obligations hereunder and
to consummate the transactions contemplated hereby. The execution, delivery
and performance of this Agreement by such Party have been duly authorized by
all necessary corporate action. This Agreement constitutes the legal, valid
and binding obligation of such Party, enforceable in accordance with its
terms, subject as to enforceability to limits imposed by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and the
availability of equitable remedies.
7.2 No Conflict; No Default.
Neither the execution, delivery and performance of this Agreement nor
the consummation by such Party of the transactions contemplated hereby (i)
will conflict with, violate or result in a breach of any of the terms,
conditions or provisions of any law, regulation, order, writ, injunction,
decree, determination or award of any Governmental Authority or any
arbitrator, applicable to such Party or any of its Subsidiaries, (ii) will
conflict with, violate, result in a breach of or constitute a default under
any of the terms, conditions or provisions of the certificate or articles of
incorporation or bylaws of such Party or any of its Subsidiaries or of any
material agreement or instrument to which such Party or any of its
Subsidiaries is a party or by which such Party or any of its Subsidiaries is
or may be bound or to which any of its material properties or assets is
subject, (iii) will conflict with, violate, result in a breach of, constitute
a default under (whether with notice or lapse of time or both), accelerate or
permit the acceleration of the performance required by, give to others any
interests or rights or require any consent, authorization or approval under
any indenture, mortgage, lease agreement or instrument to which such Party or
any of its Subsidiaries is a party or by which such Party or any of its
Subsidiaries is or may be bound or (iv) will result in the creation or
imposition of any Lien upon any of the material properties or assets of such
Party or any of its Subsidiaries, other than Permitted Liens, which in any
such case could reasonably be expected to have a Material Adverse Effect on
such Party.
7.3 Litigation.
There are no actions, suits, proceedings or investigations pending or,
to the knowledge of such Party, threatened against or affecting such Party or
any of its properties, assets or businesses in any court or before or by any
Governmental Authority, or any arbitrator which could, if adversely determined
(or, in the case of an investigation, could lead to any action, suit or
proceeding, which if adversely determined could) reasonably be expected to
have a Material Adverse Effect on such Party, and such Party has not received
any currently effective notice of any default, and such Party is not in
default under any applicable order, writ, injunction, decree, permit,
determination or award of any Governmental Authority or any arbitrator which
could reasonably be expected to have a Material Adverse Effect on such Party.
7.4 Finders Fees.
There is no investment banker, broker or finder that has been retained
by or is authorized to act on behalf of such Party who might be entitled to
any fee or commission from any other Party, MajorCo or any of its
Subsidiaries, or PioneerCo upon consummation of the transactions contemplated
by this Agreement.
SECTION 8. REPRESENTATIONS AND WARRANTIES OF
COX REGARDING THE LA PIONEER PREFERENCE LICENSE
Cox hereby represents and warrants to each of the other Parties as
follows:
8.1 LA Pioneer Preference License.
Cox has satisfied all terms and conditions required to be satisfied on
or before the date hereof imposed by the FCC, by any other Governmental
Authority, or by federal law as of the date hereof as a condition of the award
of the LA Pioneer Preference License, including the FCC's pioneers' preference
rules as codified at 47 C.F.R. Sections 1.402, 1.403 and 5.207 (1993); orders
issued in Federal Communications Commission dockets ET Docket Xx. 00-000, XXX
Xxxxxx Xx. 00-000 and GEN Docket No. 90-217; and conditions imposed as of the
date hereof in response to Xxx'x application for authority to provide
broadband PCS service on frequency block "A" of the Los Angeles-San Diego MTA.
8.2 Compliance with Laws.
Cox has not made any untrue statement of fact, or omitted to disclose
any facts, to the FCC or any other Governmental Authority or taken or failed
to take any action, which misstatements, omissions, actions or failures to
act, individually or in the aggregate, subject or could reasonably be expected
to subject Cox to the forfeiture of its right to hold and utilize the LA
Pioneer Preference License.
8.3 Litigation.
Except as set forth on Schedule 8.3, there are no actions, suits,
proceedings or investigations pending or, to the knowledge of Cox, threatened
against or affecting Cox in, before or by any Governmental Authority or any
arbitrator which could, if adversely determined (or, in the case of an
investigation could lead to any action, suit or proceeding, which if adversely
determined could) reasonably be expected to affect the right of Cox to hold
and utilize the LA Pioneer Preference License; and Cox has not received any
currently effective notice of any default, and Cox is not in default, under
any applicable order, writ, injunction, decree, permit, determination or award
of any Governmental Authority or any arbitrator which could reasonably be
expected to affect the right of Cox to hold and utilize the LA Pioneer
Preference License.
8.4 Title to the LA Pioneer Preference License.
Subject to the outcome of the proceedings described in Schedule 8.3, the
LA Pioneer Preference License has been issued to Cox and Cox is the authorized
legal holder thereof, free and clear of all Liens (except for any Liens
relating to Xxx'x deferred payment obligations), and, subject to receipt of
any required regulatory approvals, Cox is entitled to transfer or assign the LA
Pioneer Preference License to PioneerCo as contemplated under the PioneerCo
Term Sheet.
8.5 Xxx Enterprises.
Cox is a Subsidiary of Xxx Enterprises.
SECTION 9. EFFECT OF REPRESENTATIONS,
WARRANTIES AND COVENANTS
All representations and warranties made in this Agreement and all
statements contained in any Exhibit, Schedule or certificate or other
agreement or instrument delivered or to be delivered by or on behalf of the
Parties in connection with the transactions contemplated hereby (including
pursuant to Section 5.2) shall be deemed representations and warranties
hereunder. All such representations and warranties shall survive until the
earlier to occur of the PioneerCo Termination Date or the PioneerCo Closing
Date, but not thereafter.
SECTION 10. MISCELLANEOUS
10.1 Notices.
Any notice, payment, demand, or communication required or permitted
to be given by any provision of this Agreement shall be in writing and
mailed (certified or registered mail, postage prepaid, return receipt
requested) or sent by hand or overnight courier, or by facsimile (with
acknowledgment received by overnight courier), charges prepaid and
addressed to the address set forth on Schedule 10.1, or to such other
address as such Person may from time to time specify by notice to the
Parties. Any Party may from time to time specify a different address by
notice to the other Parties. Any such notice shall be deemed to be
delivered, given, and received for all purposes as of the date so
delivered.
10.2 Construction.
This Agreement shall be construed simply according to its fair meaning
and not strictly for or against any Party.
10.3 Time.
Time is of the essence with respect to this Agreement.
10.4 Table of Contents; Headings.
The table of contents and section and other headings contained in this
Agreement are for reference purposes only and are not intended to describe,
interpret, define, or limit the scope, extent, or intent of this Agreement or
any provision hereof.
10.5 Severability.
Every provision of this Agreement is intended to be severable. If any
term or provision hereof is illegal, invalid or unenforceable for any reason
whatsoever, that term or provision will be enforced to the maximum extent
permissible so as to effect the intent of the Parties, and such illegality,
invalidity or unenforceability shall not affect the validity or legality of
the remainder of this Agreement. If necessary to effect the intent of the
Parties, the Parties will negotiate in good faith to amend this Agreement to
replace the unenforceable language with enforceable language which as closely
as possible reflects such intent.
10.6 Incorporation by Reference.
Every Exhibit and Schedule attached to this Agreement and referred to
herein is not incorporated in this Agreement by reference unless this
Agreement expressly otherwise provides.
10.7 Further Action.
Each Party, upon the reasonable request of any other Party, agrees to
perform all further acts and execute, acknowledge, and deliver any
documents which may be reasonably necessary, appropriate, or desirable to
carry out the intent and purposes of this Agreement.
10.8 Governing Law.
The internal laws of the State of New York (without regard to
principles of conflict of law) shall govern the validity of this Agreement,
the construction of its terms, and the interpretation of the rights and
duties of the Parties.
10.9 Counterpart Execution.
This Agreement may be executed in any number of counterparts with the
same effect as if all the Parties had signed the same document. All
counterparts shall be construed together and shall constitute one agreement.
10.10 Specific Performance.
Each Party agrees with the other Parties that the other Parties would
be irreparably damaged if any of the provisions of this Agreement are not
performed in accordance with their specific terms and that monetary damages
would not provide an adequate remedy in such event. Accordingly, it is
agreed that, in addition to any other remedy to which the nonbreaching
Parties may be entitled, at law or in equity, the nonbreaching Parties
shall be entitled to injunctive relief to prevent breaches of the
provisions of this Agreement and specifically to enforce the terms and
provisions hereof in any action instituted in any court of the United
States or any state thereof having subject matter jurisdiction thereof.
10.11 Entire Agreement.
The provisions of this Agreement, including the Exhibits and Schedules
hereto, set forth the entire agreement and understanding between the Parties
as to the subject matter hereof and supersede all prior agreements, oral or
written, and other communications between the Parties relating to the subject
matter hereof. All obligations of the Parties under the Prior Agreement that
are not expressly set forth in this Agreement are hereby terminated, and no
Party shall have any liability or obligation to any other Party with respect
thereto.
10.12 Parties in Interest; Limitation on Rights of Others.
Except as otherwise provided herein, the terms of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Nothing in this Agreement, whether express
or implied, shall be construed to give any Person other than the Parties any
legal or equitable right, remedy or claim under or in respect of this
Agreement or any covenants, conditions or provisions contained herein. No
Party may assign any of its rights and obligations hereunder to any person
without the prior written consent of the other Parties, except to the
transferee of such Party's Subsidiary's entire interest in MajorCo in
connection with a Permitted Transaction (as defined in the MajorCo Partnership
Agreement).
10.13 Waivers; Remedies.
The observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively) by the Party or Parties entitled to enforce such term, but any
such waiver shall be effective only if in a writing signed by the Party or
Parties against which such waiver is to be asserted. Except as otherwise
provided herein, no failure or delay of any Party in exercising any power or
right under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such right or power, preclude any other or
further exercise thereof or the exercise of any other right or power.
10.14 Jurisdiction; Consent to Service of Process.
(a) Each Party hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of any New York
State court sitting in the County of New York or any Federal court of the
United States of America sitting in the Southern District of New York, and any
appellate court from any such court, in any suit, action or proceeding arising
out of or relating to this Agreement, or for recognition or enforcement of any
judgment, and each Party hereby irrevocably and unconditionally agrees that
all claims in respect of any such suit, action or proceeding may be heard and
determined in such New York State court or, to the extent permitted by law, in
such Federal court.
(b) Each Party hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any New York State
court sitting in the County of New York or any Federal court sitting in the
Southern District of New York. Each Party hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such suit, action or proceeding in any such court and further
waives the right to object, with respect to such suit, action or proceeding,
that such court does not have jurisdiction over such Party.
(c) Each Party irrevocably consents to service of process in the
manner provided for the giving of notices pursuant to this Agreement. Nothing
in this Agreement shall affect the right of a Party to serve process in any
other manner permitted by law.
10.15 Waiver of Jury Trial.
Each Party waives, to the fullest extent permitted by applicable law,
any right it may have to a trial by jury in respect of any action, suit or
proceeding arising out of or relating to this Agreement.
[signatures follow on a separate page]
IN WITNESS WHEREOF, the Parties have entered into this Second Amended and
Restated Joint Venture Formation Agreement as of the date first above set
forth.
SPRINT CORPORATION
By:___________________________________
Title:________________________________
TELE-COMMUNICATIONS, INC.
By:___________________________________
Title:________________________________
COMCAST CORPORATION
By:___________________________________
Title:________________________________
XXX COMMUNICATIONS, INC.
By:___________________________________
Title:________________________________
SCHEDULE 10.1
NOTICE ADDRESSES
If to Sprint: Sprint Corporation
0000 Xxxxxxx Xxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attn: Chief Financial Officer
with copies to:
Sprint Corporation
0000 Xxxxxxx Xxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attn: Corporate Secretary
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxxxx, Esq.
If to TCI: Tele-Communications, Inc.
0000 XXX Xxxxxxx
Xxxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxx
Executive Vice President
with copy to:
Xxxxx & Xxxxx, L.L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy No.: (000) 000-0000
Attn: Xxxxxxxxx Xxxxxxxxx, Esq.
If to Comcast: Comcast Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Telecopy No.: (000) 000-0000
Attn: General Counsel
with copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxxx
If to Cox: Xxx Communications, Inc.
0000 Xxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Telecopy No.: (000) 000-0000
Attn: Xxxxx X. Xxxxxxx
with copy to:
Prior to February 16, 1996
Dow, Xxxxxx & Xxxxxxxxx
0000 Xxxxxx-Xxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
After February 16, 1996:
Dow, Xxxxxx & Xxxxxxxxx
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Telecopy No.:(000) 000-0000
Attn: Xxxxxxx X. Xxxx
