EXECUTION COPY
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CONTRIBUTION AGREEMENT
BY AND AMONG
LIBERTY MEDIA CORPORATION,
LIBERTY MEDIA INTERNATIONAL, INC.
LSAT HOLDINGS, INC.,
TCI SATELLITE ENTERTAINMENT, INC.
TSAT HOLDING 1, INC.,
EACH OF THE LIBERTY MEMBERS SIGNATORY HERETO,
LIBERTY SATELLITE, LLC,
AND
LSAT ASTRO, LLC
MARCH 16, 2000
CONTRIBUTION AGREEMENT
This Agreement is made as of March 16, 2000, by Liberty Media Corporation
("LMC"), LSAT Holdings, Inc. ("LSAT Holdco"), Liberty Media International, Inc.
("LMII"), Liberty KASTR Corp. ("Liberty KASTR"), Liberty XMSR, Inc. ("Liberty
XMSR"), Liberty Astro, Inc. ("Liberty Astro"), LMI/LSAT Holdings, Inc. ("Liberty
LA DTH"), TCI Satellite Entertainment, Inc. ("Satco"), TSAT Holding 1, Inc. (the
"LSAT Member"), Liberty Satellite, LLC (the "Company"); and LSAT Astro LLC
("Astro LLC").
RECITALS:
Satco and each of the Liberty Members are the initial members of the
Company and are entering into this Agreement to provide for their respective
initial capital contributions to the Company, as contemplated by the Operating
Agreement.
NOW, THEREFORE, for good and valuable consideration, and intending to be
bound, the parties hereto agree as follows:
ARTICLE 1 DEFINITIONS
1.1 CERTAIN DEFINITIONS. As used in this Agreement, the following terms
have the corresponding meanings:
"AGREEMENT" means this Agreement, including any schedules or exhibits
attached hereto.
"ASTRO OPERATING AGREEMENT" means the Amended and Restated Operating
Agreement of LSAT Astro LLC, dated as of March 16, 2000, between TSAT Holding 2,
Inc. and
"BUSINESS DAY" means any day on which banks are required to be open in
both the State of New York and the State of Colorado.
"CLOSING" means the consummation of the transactions contemplated by
this Agreement.
"CLOSING DATE" means the date of the Closing.
"GMH PLEDGE AGREEMENT" means the Pledge and Security Agreement dated as
of April 28, 1999, among Satco, Phoenixstar, Inc. (formerly known as "Primestar,
Inc.") and The Bank of New York, as collateral agent.
"GMH SAR" means the obligations of Satco under that certain agreement
dated April 28, 1999, between Satco and Phoenixstar, Inc. (formerly known as
"Primestar, Inc."), captioned "Share Appreciation Rights with Respect to Shares
of Class H Common Stock of General Motors".
"GMH SHARES" means 1,407,307 shares of the Class H Common Stock of
General Motors Corporation.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state or
other political subdivision thereof, any court, agency or other body exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any arbitrator.
"LA DTH AGREEMENTS" means each of the agreements set forth in Schedule
1 attached hereto.
"LATIN AMERICAN DTH VENTURES" means and includes each of (i) Net Sat
Servicos Ltda., a Brazilian limited liability quota company, (ii) Innova S. de
X. X., a Sociedad de Responsabilidad Limitada in corporate form formed under the
laws of Mexico, (iii) DTH Techco Partners, a Delaware general partnership, (iv)
Sky Multi-Country Partners, a Delaware general partnership, and (v) Sky Latin
America Partners, a Delaware general partnership.
"LIABILITIES" of a Person means and includes all debts, liabilities and
obligations, whether absolute or contingent, matured or unmatured, liquidated or
unliquidated, accrued or unaccrued, known or unknown, whenever arising, and
whether or not the same would properly be reflected on a balance sheet,
including all costs and expenses relating thereto.
"LIBERTY MEMBERS" means each of Liberty KASTR, Liberty XMSR, Liberty
Astro, and Liberty LA DTH.
"LIEN" means any lien, pledge, claim, encumbrance, mortgage or security
interest in real or personal property.
"MATERIAL ADVERSE EFFECT" means a material adverse change in, or
material adverse effect on, the business, assets, liabilities, results of
operations, condition (financial or otherwise) or prospects of a party
(considered together with its consolidated
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subsidiaries on a combined basis), other than any changes in, or effects on, any
of the foregoing arising primarily out of or resulting primarily from general
economic or industry conditions.
"MEMBERS" means Satco and each of the Liberty Members.
"OPERATING AGREEMENT" means the Operating Agreement of the Company,
dated as of the date hereof, among the Members and the Company.
"PERMITTED LIENS" means (i) Liens for taxes not yet due and payable,
(ii) Liens for taxes, the validity of which is being contested in good faith in
appropriate proceedings and with respect to which appropriate reserves have been
set aside on the books of the party against which such Liens have been created,
(iii) inchoate mechanic's and materialmen's Liens for construction in progress
or which are being contested in good faith in appropriate proceedings, (iv)
Liens on property which secure the purchase price of such property, (v)
workmen's, repairmen's, warehousemen's and carriers' Liens arising in the
ordinary course of business and evidencing indebtedness for related services
that is not more than 60 days past due or which is being contested in good faith
in appropriate proceedings, and (vi) minor imperfections in title and
encumbrances and other minor matters, if any, which singly or in the aggregate
are not substantial in amount, do not materially detract from the value of the
property subject thereto or interfere with the present use thereof or otherwise
impair the operations of a Person.
"PERSON" means any individual, corporation, partnership, limited
liability company, trust, unincorporated association or other entity.
1.2 TERMS GENERALLY. The definitions in Section 1.1 and elsewhere in this
Agreement apply to both the singular and plural forms of the terms defined. The
word "includes" and other forms of that word should be construed as if followed
by the phrase "without limitation". The words "hereof", "hereto" and "hereunder"
refer to this Agreement (including the Schedules and Exhibits) in its entirety
and not to any part hereof unless the context shall otherwise require.
References in this Agreement to Articles, Sections, Exhibits and Schedules refer
to Articles and Sections of, and Exhibits and Schedules to, this Agreement
unless the context otherwise requires. Unless the context otherwise requires,
references herein to any agreement or other instrument (other than any such
references in the Schedules) 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" (without the explicit
qualification of "Business") refers 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
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Business Day, then such action or notice shall be deferred until, or may be
taken or given without penalty on, the next Business Day.
ARTICLE 2 CONTRIBUTIONS
2.1 SATCO CONTRIBUTION - GMH SHARES.
(a) On the Closing Date, the LSAT Member will contribute to the Company
the entire beneficial interest of the LSAT Member in the GMH Shares, including:
(i) all voting and consensual rights of Satco relating to the GMH
Shares;
(ii) the right to direct any sale or disposition of the GMH
Shares, or any of them, and to control the time, place, terms and
manner of any such sale or disposition;
(iii) all rights and beneficial interests of Satco as pledgor
under the GMH Pledge Agreement and as issuer of the GMH SAR, including
the right to direct the manner in which the obligations of Satco under
the GMH SAR will be satisfied; and
(iv) subject to the provisions of the GMH SAR and the GMH Pledge
Agreement, all rights to any proceeds of the GMH Shares, including the
proceeds of any sale or disposition of the GMH Shares and any
dividends or distributions declared or paid thereon.
(b) Concurrently with the contribution by the LSAT Member of its
beneficial interest in the GMH Shares, the Company will assume, and agree to pay
and discharge, as and when they become due, and otherwise take the GMH Shares
subject to, all Liabilities of Satco under the GMH Pledge Agreement and the GMH
SAR.
(c) The beneficial interest in the GMH Shares, as contributed by the
LSAT Member to the Company hereunder, subject to the GMH SAR and other
Liabilities to be assumed by the Company in connection with such contribution,
are hereby agreed to have a value on the Closing Date, for all purposes of this
Agreement and the Operating Agreement, equal to $66,130,000.
(d) As soon as practicable following the satisfaction of the GMH SAR
and the release of the GMH Shares from the lien of the GMH Pledge Agreement,
Satco shall transfer title to the GMH Shares to the Company, for no additional
consideration.
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2.2 SATCO CONTRIBUTION - JATO SHARES.
On the Closing Date, the LSAT Member will contribute to the Company
892,857 shares of Series C Preferred Stock of Jato Communications Corp. ("Jato")
having an agreed aggregate value on the Closing Date of $10,000,000.
2.3 LIBERTY XMSR CONTRIBUTION.
(a) On the Closing Date, Liberty XMSR will contribute to the Company
1,000,000 shares of common stock of XM Satellite Radio Holdings, Inc. ("XMSR").
(b) The shares of XMSR contributed by Liberty XMSR to the Company
hereunder will be valued at the 4:00 p.m. closing price of such shares on the
second business day preceding the Closing Date on The Nasdaq Stock Market, or if
such shares are not then traded on Nasdaq, on the principal national or regional
stock exchange on which they are listed for trading.
2.4 LIBERTY KASTR CONTRIBUTION.
(a) On the Closing Date, Liberty KASTR will contribute to the Company
19,621,397 shares of convertible preferred stock of iSky, Inc. ("ISKY").
(b) The shares of iSky contributed by Liberty KASTR to the Company
hereunder will be valued at Liberty KASTR's cost, plus carrying costs calculated
at 10% per annum from the date of investment through the Closing Date.
2.5 LIBERTY ASTRO CONTRIBUTION.
(a) On the Closing Date, Liberty Astro will contribute to the Company
an 85.88% equity interest in Astro LLC with an associated capital account of
$365,000,000.
(b) Concurrently with the contribution by Liberty Astro of its equity
interest in Astro LLC, the Company will become a party to the Astro Operating
Agreement by executing and delivering a counterpart to the Astro Operating
Agreement, and LMC and Liberty Astro will cause the Company to be admitted as a
member of Astro LLC.
(c) The equity interest in Astro LLC contributed by Liberty Astro to
the Company hereunder will be valued at Liberty Astro's cost, plus carrying
costs calculated at 10% per annum from the date of investment through the
Closing Date.
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(d) To the extent that any funding obligation of Astro LLC to Astrolink
LLC remains outstanding on the Closing Date, Liberty Astro shall satisfy such
obligation as and when due, or contribute to the Company in cash the funds
required to do so.
2.6 LIBERTY LA DTH CONTRIBUTION.
(a) On the Closing Date, Liberty LA DTH will contribute to the Company
the entire beneficial interest of Liberty LA DTH in the Latin American DTH
Venture, including:
(i) all voting and consensual rights of Liberty LA DTH relating
to the Latin American DTH Venture;
(ii) the right to direct any sale or disposition of any debt or
equity securities of, or other ownership or investment interests in,
the Latin American DTH Venture (collectively, the "LA DTH SECURITIES")
and to control the time, place, terms and manner of any such sale or
disposition; and
(iii) all rights to any proceeds of the Latin American DTH
Venture and the LA DTH Securities, including the proceeds of any sale
or disposition of the LA DTH Securities and any dividends or
distributions declared or paid thereon.
(b) Concurrently with the contribution by LA DTH of its beneficial
interest in the LA DTH Securities, the Company will assume, and agree to pay and
discharge, as and when they become due, and otherwise take the LA DTH Securities
subject to, all Liabilities of LA DTH under the LA DTH Agreements.
(c) The beneficial interest in the LA DTH Venture contributed by LA DTH
to the Company hereunder, subject to the Liabilities to be assumed by the
Company in connection with such contribution, is hereby agreed to have a value
on the Closing Date, for all purposes of this Agreement and the Operating
Agreement, equal to $200,000,000.
(d) From time to time following the Closing Date, LMC, LSAT Holdco and
Liberty LA DTH shall use their best commercially reasonable efforts to obtain
all necessary governmental and other third party consents (collectively, the
"Required DTH Consents"), including the consent of each other member of the LA
DTH Venture, to the transfer to the Company of full legal ownership of Liberty
LA DTH's interest in the Latin American DTH Venture, including record and legal
title to the LA
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DTH Securities ("DTH Legal Ownership"). As soon as practicable following the
receipt of the Required DTH Consents, Liberty LA DTH shall transfer to the
Company, for no additional consideration, DTH Legal Ownership.
2.7 ASSIGNMENT OF RELATED CONTRACT RIGHTS. Concurrently with each of the
contributions to be made by the Members pursuant to Sections 2.1 through 2.6,
each Member shall contribute and assign to the Company, as part of such
contribution and without any additional consideration, all contract rights of
such Member relating to the property so contributed, including (i) all rights
under any purchase agreements, security holder agreements, registration rights
agreements, voting agreements, operating agreements, partnership agreements,
joint venture agreements and similar agreements relating to such property to
which such Member is a party, (ii) any and all rights that such Member may have
to direct or participate in the management of any Person that is the issuer of
any securities or other ownership interests so contributed to the Company, (iii)
any and all preemptive rights, rights of refusal or offer or other rights that
such Member may have to maintain (in whole or in part) or increase such Member's
equity interest in any such Person, and (iv) any and all contract rights,
including rights of refusal or offer, relating to the provision of marketing,
distribution, installation, support, maintenance, repair and/or other services
to any such Person. The parties acknowledge that any and all such contract
rights have already been taken into account in establishing the valuation or
valuation methodology applicable to such contribution for purposes of this
Agreement and the Operating Agreement.
2.8 INITIAL CONTRIBUTIONS CONTEMPLATED BY OPERATING AGREEMENT. The
contributions of the LSAT Member and each of the Liberty Members provided for in
Sections 2.1 through 2.6 constitute the Initial Contributions to the Company by
such Members, as contemplated by Section 3.1 of the Operating Agreement.
2.9 TRANSFER AND DOCUMENTATION. At the Closing, each Member shall execute
and deliver to the Company such instruments of conveyance as the Company or any
Member may reasonably request in order to convey, assign and (as applicable)
transfer title to all properties and assets required to be contributed to the
Company at the Closing, and the Company shall execute an assumption agreement
pursuant to which Company assumes and agrees to pay when due and otherwise
satisfy, discharge and perform all Liabilities required to be assumed by the
Company at the Closing, in each case as provided in Sections 2.1 through 2.6.
2.10 UNASSIGNABLE RIGHTS AND ASSETS.
(a) Notwithstanding anything in this Agreement to the contrary, this
Agreement shall not constitute an agreement to assign any security, contract
rights or other property without the consent of another Person if an assignment
or attempted
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assignment thereof without the consent of such Person would constitute a breach
of such contract or a breach of any material contract or instrument governing or
establishing such property, or would otherwise result in a material impairment
of such property or the rights of the contributing Member (or of the Company, as
assignee) in connection therewith.
(b) If any such consent is not obtained or if an attempted assignment
would be ineffective or would impair any party's rights with respect to such
property so that the Company would not receive all such rights, then (i) the
contributing Member (and, in the case of any Liberty Member, LMC and LSAT Holdco
and, in the case of the LSAT Member, Satco), as applicable, shall continue
(before and after the Closing Date) to use its best commercially reasonable
efforts to obtain such consents and approvals and use its best commercially
reasonable efforts to provide or cause to be provided to the Company, to the
extent permitted by law, all economic and other benefits of such property
(including the rights to direct any sale or disposition thereof, to exercise any
voting and other consensual rights relating thereto, to make any other elections
or determinations that the contributing Member would be entitled to make with
respect thereto, and to receive all proceeds and products thereof and therefrom)
and (ii) if such contributing Member is able to provide the Company with the
benefits thereof, the Company shall pay, perform and discharge on behalf of the
contributing Member all of such Members Liabilities with respect thereto in a
timely manner and in accordance with the terms thereof. In addition, the
contributing Member (and, in the case of any Liberty Member, LMC and LSAT Holdco
and, in the case of the LSAT Member, Satco), as applicable, shall take such
other actions as may reasonably be requested by the Company in order to place
the Company, insofar as reasonably possible, in the same position as if such
property had been transferred as contemplated hereby, so that all the benefits
and burdens relating thereto shall inure to the Company.
(c) If and when any such consents and approvals are obtained, or are no
longer required, the transfer of the applicable property shall be promptly
effected in accordance with the terms of this Agreement.
2.11 CONVEYANCE TAXES; EXPENSES.
(a) Each Member shall be liable for and shall pay all transfer, stamp,
real property transfer taxes and any other similar taxes incurred as a result of
the contributions by such Member contemplated hereby, and shall hold each of the
other parties hereto harmless against any such taxes.
(b) Each Member shall bear its own fees and expenses relating to the
transactions contemplated by this Article II (including all legal and accounting
fees and
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expenses and the fees and expenses of any investment banking firms
engaged by such party), whether or not such transactions are consummated.
2.12 FURTHER ASSURANCES. At and, at the reasonable request of the Company
or any Member, from time to time following the Closing, each of the parties
hereto will promptly execute such other documents and instruments, and will take
such further actions, as may be necessary to vest, perfect or confirm in the
Company all rights, titles and interests in, to and under the property and
assets required to be contributed to the Company hereunder, and otherwise to
carry out the provisions hereof.
2.13 STOCKHOLDER CONSENT. LSAT Holdco, as sole stockholder of each of
Liberty KASTR, Liberty XMSR and Liberty Astro, LMII, as sole stockholder of
Liberty LA DTH, and Satco, as sole stockholder of the LSAT Member, hereby
approve, authorize and consent to each of the contributions to be made by each
of such Members, respectively, and agrees to execute and deliver to such Member
(with a copy to the Company and each other Member) such written consents and/or
other instruments confirming such approval, authorization and consent as the
Company or any Member may reasonably request to confirm such consent.
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE PARTIES
Each party hereby represents and warrants to each of the other parties as
follows:
3.1 DUE INCORPORATION OR ORGANIZATION; GOOD STANDING; POWER AND AUTHORITY;
AUTHORIZATION, EXECUTION AND DELIVERY OF AGREEMENTS; LEGALITY AND BINDING
EFFECT. Such party is a corporation or limited liability company duly organized
and validly existing under the laws of the jurisdiction of its incorporation or
organization and has all requisite corporate or organizational 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 qualified to do business and in good
standing (if applicable) in each jurisdiction in which the failure to be so
qualified would have a Material Adverse Effect on such party. Such party has all
requisite corporate or organizational power and authority to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by such party, and the execution, delivery and performance of this
Agreement by such party have been duly authorized by all requisite corporate or
organizational action, including any required approval of the stockholder(s) or
member(s) of such party. This Agreement constitutes the legal, valid and binding
obligation of such party, enforceable in accordance with its terms (except as
such enforceability may be limited by bankruptcy, insolvency (including all laws
relating to fraudulent transfers), reorganization, moratorium and similar laws
affecting the rights and remedies of creditors generally and the application of
general principles of equity).
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3.2 NO CONFLICT; NO DEFAULT. Except, as to clauses (i), (iii), (iv) and (v)
below only, as would not have a Material Adverse Effect on such party, neither
the execution or delivery of this Agreement by such party nor the performance of
this Agreement by such party or the consummation by such party of the
transactions contemplated hereby in accordance with the terms and conditions
hereof (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 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, bylaws or
partnership agreement (or other governing documents) of such party or any of its
subsidiaries, (iii) will conflict with, violate, result in a breach of or
constitute a default under any of the terms, conditions or provisions 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 equity interest held by such party in any other entity or any of
its other material properties or assets is subject, (iv) 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 similar 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,
(v) will result in the creation or imposition of any Lien upon any asset held by
such party that is transferred to the Company pursuant to this Agreement or (vi)
will result in the creation or imposition of any Lien upon any of the other
material properties or assets of such party or any of its subsidiaries, other
than Permitted Liens.
ARTICLE 4 COVENANT TO COOPERATE IN GOOD FAITH
Each of the parties hereby agrees and covenants for the benefit of each
other party that, between the date of this Agreement and the Closing (or, if
later, the contribution of the applicable property to the Company pursuant to
Section 2.1(d), 2.6(d) or 2.10(c)), such party shall cooperate in good faith
with each other party in their respective efforts to obtain all necessary
consents and approvals for the consummation of the transactions contemplated
hereby, including making qualified personnel available for attending hearings
and meetings respecting such required consents. Without limiting the generality
of the foregoing, each party shall use its best efforts (i) to obtain all
consents and authorizations of third parties and Governmental Authorities and to
make all filings with and give all notices to third parties and Governmental
Authorities which may be necessary or reasonably required in order to effect the
transactions contemplated hereby and (ii) to provide the other parties and their
respective counsel with copies of all such filings made and all such notices
given as such other parties may reasonably request and to afford the other
parties the opportunity to participate in any discussions with any such
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third party or Governmental Authority or representative thereof in connection
with the transactions contemplated hereby to the extent reasonably requested by
any other party hereto.
ARTICLE 5 CONDITIONS TO CLOSING
5.1 CONDITIONS PRECEDENT TO CLOSING. The obligations of each of the parties
under this Agreement to effect the transactions contemplated to occur at the
Closing are subject to the satisfaction, on or prior to the Closing Date of the
following conditions, compliance with which or the occurrence of which may be
waived in whole or in part by the other parties hereto.
5.2 CONSENTS. Subject to Sections 2.1, 2.6 and 2.10, each consent,
authorization or approval required to be obtained in connection with the
consummation of the transactions contemplated to occur at the Closing shall have
been obtained on or prior to the Closing Date, except for any of the foregoing
the failure of which to obtain would not, individually or in the aggregate, have
a Material Adverse Effect on any party to this Agreement
5.3 NO INJUNCTION. 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 Closing or
imposes any material restrictions or requirements thereon or on any of the
parties in connection therewith.
ARTICLE 6 CLOSING
The Closing will take place at the offices of Xxxxxxx & Xxxxxx L.L.C., 000
Xxxxxxxxxxx Xxxxxx, Xxxxxx Xxxxxxxx 00000, at 10:00 a.m. local time on the third
Business Day after the satisfaction of all conditions set forth in Article 5, or
at such other place, date or time as the parties hereto shall agree.
ARTICLE 7 MISCELLANEOUS
7.1 NOTICES. Except as expressly provided in this Agreement, all notices,
consents, waivers and other communications required or permitted to be given by
any provision of this Agreement shall be in writing and mailed or sent by hand
or overnight courier, or by facsimile transmission, charges prepaid and
addressed to the intended recipient as follows, or to such other address or
number as such Person may from time to time specify by like notice to the
parties:
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If to LMC, LMII, LSAT Holdco, or any of the Liberty Members:
Liberty Media Corporation
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxxx LLC
000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Satco, the LSAT Member, the Company or Astro LLC:
TCI Satellite Entertainment, Inc.
0000 Xxxx Xxxxxxx Xxxx
Xxxxx 000 Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxx Xxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Leaf, Esq.
Any party may from time to time specify a different address for
notices by like notice to the other parties. All notices and other
communications given to a Person in accordance with the provisions of this
Agreement shall be deemed to have been given and received (i) three Business
Days after the same are sent by mail, postage prepaid, (ii) upon receipt when
delivered by hand or transmitted by facsimile or (iii) one Business
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Day after the same are sent by a reliable overnight courier service, with
acknowledgment of receipt.
7.2 BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors, permitted transferees,
and permitted assigns.
7.3 SEVERABILITY. Each provision of this Agreement is intended to be
severable from each other provision of this Agreement. If any term or provision
hereof is held by any Governmental Authority to be 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,
legality or enforceability of the remainder of this Agreement. If necessary to
effect the intent of the parties hereto, the parties hereto will negotiate in
good faith to amend this Agreement to replace the unenforceable language with
enforceable language that as closely as possible reflects such intent.
7.4 AMENDMENTS. This Agreement may be modified or amended only by written
instrument signed by each of the parties hereto affected by such modification or
amendment.
7.5 ASSIGNMENT. No party shall assign any of its rights under this
Agreement or delegate its duties hereunder without the prior written consent of
each of the other parties hereto, which consent shall not unreasonably be
withheld or delayed.
7.6 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 in this Agreement, no failure or delay of any party hereto 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.
7.7 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 define, interpret or limit the scope or intent of this
Agreement or any provision hereof.
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7.8 GOVERNING LAW. The validity of this Agreement, the construction of its
terms and the interpretation of the rights and duties of the parties shall be
governed by the laws of the State of Delaware, without regard to conflict of law
principles.
7.9 CONSENT TO JURISDICTION; SPECIFIC PERFORMANCE.
(a) Each party to this Agreement hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
Colorado court or any United States Federal court sitting in the District of
Colorado, 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 hereto irrevocably and
unconditionally agrees that all claims in respect of any such suit, action or
proceeding may be heard and determined in such Colorado court or, to the extent
permitted by law, in such Federal court.
(b) Each party to this Agreement hereby irrevocably and unconditionally
waives, to the fullest extent it may legally do so, any objection that such
party 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 United States Federal court
sitting in the Southern District of New York. Each party to this Agreement
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of any such suit, action or
proceeding in any such court and hereby 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 hereto hereby irrevocably consents to service of process
in the manner provided for the giving of notices pursuant to this Agreement;
PROVIDED, HOWEVER, that such service shall be deemed to have been given only
when actually received by such party. Nothing in this Agreement shall affect the
right of a party to serve process in any other manner permitted by law.
(d) Each party hereto agrees with each of the other parties hereto that
each other party would be irreparably harmed if any of the provisions of this
Agreement were not performed in accordance with their specific terms, and that
in any such event, monetary damages would not provide an adequate remedy for
such harm. Accordingly, in addition to any other remedy to which the
nonbreaching parties may be entitled, at law or in equity, each of the
nonbreaching parties shall be entitled to injunctive relief to prevent breaches
of this Agreement and specifically to enforce the terms and provisions hereof.
14
7.10 WAIVER OF JURY TRIAL. Each party hereto hereby 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 or any other transactions contemplated hereby.
7.11 COUNTERPARTS; EXECUTION. This Agreement may be executed in any number
of counterparts, and on multiple counterparts, with the same effect as if all
parties hereto had signed the same document. All counterparts shall be construed
together and shall constitute one agreement. The signature pages from any duly
executed counterpart of this Agreement may be removed from such counterpart and
attached to any identical counterpart of this Agreement, with the same effect as
if the parties signing such signature pages had signed such latter counterpart
directly. Signature pages may be signed and delivered by telecopier or
facsimile.
7.12 NO THIRD-PARTY RIGHTS. Nothing in this Agreement, whether express or
implied, shall be construed to give any Person other than the parties hereto any
legal or equitable right, remedy or claim under or in respect of this Agreement,
as a so-called "third-party beneficiary" or otherwise.
15
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first above written.
LMI/LSAT HOLDINGS, INC.
By:
-------------------------------
Name:
Title:
LIBERTY KSTR CORP.
By:
-------------------------------
Name:
Title:
LIBERTY XMSR, INC.
By:
-------------------------------
Name:
Title:
LIBERTY ASTRO, INC.
By:
-------------------------------
Name:
Title:
TSAT HOLDING 1, INC.
By:
-------------------------------
Name:
Title:
TCI SATELLITE ENTERTAINMENT, INC.
By:
-------------------------------
Name:
Title:
16
LIBERTY MEDIA CORPORATION
By:
-------------------------------
Name:
Title:
LIBERTY MEDIA INTERNATIONAL, INC.
By:
-------------------------------
Name:
Title:
LSAT HOLDINGS, INC.,
By:
-------------------------------
Name:
Title:
LIBERTY SATELLITE, LLC
By:
-------------------------------
Name:
Title:
LSAT ASTRO, LLC
By:
-------------------------------
Name:
Title:
17
SCHEDULE 1
LA DTH AGREEMENTS
18
