Exhibit 99E
PARENTS AGREEMENT
This PARENTS AGREEMENT (the "Agreement") is entered into as of the 31st
day of January, 1996, by COMCAST CORPORATION, a Pennsylvania corporation
("Comcast Parent") and SPRINT CORPORATION, a Kansas corporation ("Sprint
Parent").
WHEREAS, subsidiaries of each of Comcast Parent, Sprint Parent, ▇▇▇
Communications, Inc., a Delaware corporation ("Cox Parent"), and
Tele-Communications, Inc., a Delaware corporation ("TCI Parent", and
together with Cox Parent and Comcast Parent, the "Cable Parents") (such
subsidiaries, the "Partners") have entered into that certain Agreement
of Limited Partnership of MajorCo, L.P., dated as of March 28, 1995, as
amended by that certain First Amendment to Agreement of Limited
Partnership, dated as of August 31, 1995 (the "Prior Partnership
Agreement"), pursuant to which MajorCo, L.P., a Delaware limited
partnership ("MajorCo") was formed;
WHEREAS, as of the date hereof, the Partners are further amending the
Prior Partnership Agreement and restating it in its entirety (as so
amended and restated, the "Partnership Agreement") and, in connection
therewith, each Cable Parent has agreed to make certain undertakings to
Sprint Parent, and Sprint Parent has agreed to make certain undertakings
to each Cable Parent.
NOW, THEREFORE, in consideration of the mutual promises and agreements
of the parties, and other good and valuable consideration the receipt of
which is hereby acknowledged, Sprint Parent and Comcast Parent do hereby
agree as follows:
SECTION 1. Definitions.
(a) The following capitalized words and phrases as used in this
Agreement have the meanings indicated below:
"Advanced Data Services" has the meaning set forth in Schedule 1.
"Brand" of any Person means a trademark, tradename, service ▇▇▇▇ and/or
logo of such Person.
"Bulk Purchaser" means a purchaser of cable television service that
provides such service to multiple dwelling units (whether in one or more
buildings or whether in one or more complexes or locations) of which it
is the owner or for which it acts as manager or agent or with which it
otherwise has a relationship, by contract or otherwise.
"Cable Subsidiary" means (i) any Controlled Affiliate of Comcast Parent
that owns a cable television system and (ii) any Person that Comcast
Parent or its Controlled Affiliates has a unilateral right to cause to
comply with Section 2 hereof with respect to cable television systems
owned by such Person.
"Controlled Affiliate" means (i) when used with respect to Comcast
Parent, each Subsidiary of Comcast Parent, (ii) when used with respect
to Sprint Parent, each Subsidiary of Sprint Parent, and (iii) when used
with respect to any Person in Section 2 hereof, including Comcast Parent
and Sprint Parent, any Affiliate of such Person that such Person can
directly or indirectly unilaterally cause to take or refrain from taking
any of the actions required, prohibited or otherwise restricted by such
Section, whether through ownership of voting securities, contractually
or otherwise.
"Entertainment Services" has the meaning set forth in Schedule 1.
"Excluded Businesses" has the meaning set forth in Schedule 1.
"Households Passed" means, as of any relevant date, the aggregate number
of residential dwelling units to which the facilities of Comcast
Parent's Cable Subsidiaries either (i) are capable, as of such date, of
providing Local Telephony Service by means of an existing customer drop
or other similar connection or (ii) could legally provide Local
Telephony Service using a customer drop or other similar connection no
more than two hundred (200) feet in length (exclusive of any wiring
within the applicable structure and assuming that the applicable owner
or occupant consented to receipt of Local Telephony Service). For
purposes of this definition, each residential dwelling unit in a
multiple dwelling unit that is otherwise within the foregoing definition
will be counted as one Household Passed.
"IXC" means each of the following Persons, each successor to the long
distance telephony business of any such Person and each of the
respective Affiliates of each such Person or successor: AT&T Corp., MCI
Communications Corporation, British Tele-Communications plc, Worldcom,
Inc., Cable & Wireless plc, LCI International Inc. and Frontier
Corporation.
"Local JV" has the meaning set forth in Section 3.
"Local Telephony Services" has the meaning set forth in Schedule 1.
"Long Distance Telephony Services" has the meaning set forth in Schedule
1.
"Non-Exclusive Services" has the meaning set forth in Schedule 1.
"RBOC" means each of the following Persons, each successor to the local
exchange carrier business of any such Person and each of the respective
Affiliates of each such Person or successor: each BOC, GTE Corporation
and Frontier Corporation.
"Rights of Use" means rights to use the distribution facilities of a
Cable Subsidiary's cable system to provide Local Telephony Services or
Advanced Data Services, as applicable, to end users connected to such
distribution facilities.
"Satellite Carrier" means each of the following Persons, each successor
to the direct broadcast satellite business of any such Person and each
of the respective Affiliates of each such Person or successor: DIRECTV,
Inc., U.S. Satellite Broadcasting, Inc. and EchoStar Communications
Corporation.
"Sprint LECs" means, as of any relevant date, those local exchange
carriers that are Subsidiaries of Sprint Parent.
"Teleport Contribution Agreement" means that certain Contribution
Agreement among the Cable Partners, MajorCo and NewTelco, L.P., dated as
of March 28, 1995.
"Term" means the period commencing on the date hereof and ending on the
date this Agreement terminates in accordance with Section 13.
"Territory" shall mean the United States, including all territories and
possessions thereof, except for Puerto Rico, but excluding as of any
date those geographic areas in which a Sprint LEC is providing Local
Telephony Services primarily through its owned facilities at such date.
(b) The following capitalized words and phrases as used in this
Agreement have the meanings ascribed thereto in the Partnership
Agreement: "Affiliate", "BOC", "Business Day", "Cable Partner", "Comcast
Area", "MFJ", "Parent", "Person", "Sprint Brand", "Subsidiary",
"Substantial Portion", "Teleport".
(c) The definitions in this Section 1 and 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". The words "herein", "hereof" and
"hereunder" and words of similar import refer to this Agreement
(including the Schedules) in its entirety and not to any part hereof
unless the context shall otherwise require. All references herein to
Sections and Schedules shall be deemed references to Sections of, 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" (without the explicit qualification of "Business")
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. Undertakings.
(a) Exclusive Packaging/Marketing.
(i) Comcast Parent agrees that, during the Term, it will not directly or
through any Subsidiary formed for such purpose, and it will cause its
Cable Subsidiaries (and each other Controlled Affiliate of Comcast
Parent that is authorized to offer or promote, or package, any of the
products or services of its Cable Subsidiaries) not to, (A) offer or
promote, or package any of the products or services of such Cable
Subsidiary with, or act as sales agent for, any Long Distance Telephony
Services or Local Telephony Services in the Territory under the Brand of
an RBOC or an IXC, other than the Sprint Brand, or (B) package any of
the Non-Exclusive Services referred to in clause (2), (3), (4), (5),
(6), (7) or (8) of the definition of such term in Section V of Schedule
1 under the Brand of an RBOC or an IXC, other than the Sprint Brand,
with Local Telephony Services being offered by Comcast Parent or its
Controlled Affiliates in the Territory under the Brand of Comcast
Parent, an Affiliate of Comcast Parent or Teleport, in each case except
as permitted by Section 2(a)(ii) and Section 4 and except as may
otherwise be required by applicable law, and provided that Comcast
Parent shall not be deemed to be in violation of this covenant solely
because advertising relating to RBOC- or IXC-Branded Local Telephony
Services, Long Distance Telephony Services or Non-Exclusive Services
being offered or promoted, or packaged, by Comcast Parent or any of such
Cable Subsidiaries or other such Controlled Affiliates solely in one or
more geographic areas outside of the scope of this Section 2(a)(i)
appears in or is broadcast to one or more geographic areas within the
scope of this Section 2(a)(i) so long as such advertising is designed to
reach primarily potential customers in such geographic areas outside the
scope of this Section 2(a)(i). The inclusion, whether alone or in a
package, of offers or promotions of Long Distance Telephony Services or
Local Telephony Services under the brand of an RBOC or an IXC (including
advertising on advertising availabilities sold by a Cable Subsidiary) in
programming or other content contained in products or services of a
Cable Subsidiary shall not be deemed to be a violation of this Section
2(a)(i) unless such offers or promotions (other than offers or
promotions included in the content of a shopping channel or similar
service) would otherwise involve a violation of this Section. The
foregoing shall not be construed to in any way limit the right of
Comcast Parent and any of its Controlled Affiliates that are providing
Local Telephony Service in a market to provide any of its customers in
that market with any Long Distance Telephony Service, including an
IXC-branded Long Distance Telephony Service, that such customer may
request and to receive payment therefor from the provider of such Long
Distance Telephony Service in the form of an access fee or such other
form, including commission, as may be customary in the particular market
in the absence of a pre-existing sales agency agreement with a provider.
Comcast Parent and Sprint Parent further agree to negotiate in good
faith for Comcast Parent and its Cable Subsidiaries to act, and Sprint
Parent agrees that Comcast Parent and its Cable Subsidiaries will be
authorized to act, as non-exclusive sales agents for the Long Distance
Telephony Services of Sprint Parent and its Controlled Affiliates during
the Term on a most favored nation commission basis and on such other
terms as the parties may agree. The immediately preceding sentence sets
forth the intention of the parties with respect to such sales agency but
is not intended to create any legally binding obligation or give rise to
any legal or equitable right or remedy.
(ii) Except as otherwise required by law, Sprint Parent agrees that,
during the Term, Sprint Parent will not, and will cause its Controlled
Affiliates not to, offer or promote, or package any of the products or
services of Sprint Parent or its Controlled Affiliates with, any
Entertainment Services under the Brand of an RBOC or a Satellite Carrier
in any geographic area in the Territory in which a Cable Subsidiary of
Comcast Parent is providing cable television service as of the date
hereof or as of any relevant date hereafter; provided that Sprint Parent
shall not be deemed to be in violation of this covenant solely because
advertising relating to RBOC- or Satellite Carrier-Branded Entertainment
Services being offered or promoted, or packaged, by Sprint Parent or its
Controlled Affiliates solely in one or more geographic areas outside of
the scope of this Section 2(a)(ii) appears in or is broadcast to one or
more geographic areas within the scope of this Section 2(a)(ii) so long
as such advertising is designed to reach primarily potential customers
in such geographic areas outside the scope of this Section 2(a)(ii); and
provided, further, that Sprint Parent shall not be deemed in violation
of this covenant as a result of its offering, promoting or packaging any
of its products or services with Entertainment Services under an RBOC-
or Satellite Carrier-Brand in a particular geographic area if each of
the following conditions is met: (x) at the time Sprint Parent or its
Controlled Affiliates entered into the agreement with such RBOC or
Satellite Carrier, no Cable Subsidiary was providing cable television
services in the geographic area covered by such agreement and (y)
subject to the following sentence, such agreement is terminated by
Sprint Parent or its applicable Controlled Affiliate as soon as
practicable after notice (specifically referring to this Section of this
Agreement) is given to it by Comcast Parent of the applicability of this
covenant to such geographic area, but in any event not later than (A)
one year following the giving of such notice or (B) such later date as
the agreement may be terminated by Sprint Parent or the applicable
Controlled Affiliate without penalty, but this clause (B) shall only
apply if Sprint Parent was unable to negotiate on commercially
reasonable terms an earlier right of termination that would have
complied with clause (A), notwithstanding its good faith efforts.
Notwithstanding the preceding sentence, Sprint Parent or its Controlled
Affiliate, as applicable, may elect, by notice (specifically referring
to this Section of this Agreement) given to Comcast Parent within 60
days after its receipt of notice from Comcast Parent pursuant to clause
(y) above, not to terminate its agreement with an RBOC or Satellite
Carrier in the applicable market unless Comcast Parent provides or
causes to be provided to Sprint Parent or its applicable Controlled
Affiliate on competitive economic terms the same or substantially
similar kinds of Entertainment Services under a Comcast Parent Brand to
offer and promote, and package with other products and services to offer
and promote, to its customers in such market. If Sprint Parent makes
the foregoing election and Comcast Parent does not make such
Entertainment Services so available within 30 days of its receipt of
such notice from Sprint Parent, then (x) Sprint Parent and its
applicable Controlled Affiliate shall not be deemed to be in breach of
this Section 2(a)(ii) solely as a result of its failure to terminate its
agreement with the RBOC or Satellite Carrier with respect to the
applicable market and (y) Comcast Parent and its Controlled Affiliates
shall be released from their obligations under Section 2(a)(i) with
respect to such market, and Sprint Parent and its Controlled Affiliates
shall be released from their obligations under Section 2(a)(ii) with
respect to such market.
(b) Right of Use.
(i) Comcast Parent agrees that, during the Term: (x) if a Cable
Subsidiary of Comcast Parent makes Rights of Use for Local Telephony
Services available on its distribution facilities in a particular market
to any Person other than (A) an Affiliate of such Cable Subsidiary, (B)
Teleport, (C) MajorCo or (D) a Local JV, Comcast Parent will cause that
Cable Subsidiary to make Rights of Use available to Sprint Parent and
its Controlled Affiliates (or, if Comcast Parent or a Controlled
Affiliate of Comcast Parent and Sprint Parent or a Controlled Affiliate
of Sprint Parent have entered a Local JV with regard to such market, the
Local JV in such market) on the same facilities in such market for the
same or similar kinds (including, subject to the following paragraph,
specifications and standards, capacity and quality metrics) of Local
Telephony Services and, if applicable, the same or similar kinds of
Non-Exclusive Services, on no less favorable terms; and (y) if a Cable
Subsidiary of Comcast Parent makes Rights of Use available on its
distribution facilities in a particular market to any IXC or RBOC for
the provision of Advanced Data Services, Comcast Parent will cause that
Cable Subsidiary to make Rights of Use available to Sprint Parent and
its Controlled Affiliates (or, if Comcast Parent or a Controlled
Affiliate of Comcast Parent and Sprint Parent or a Controlled Affiliate
of Sprint Parent have entered a Local JV with regard to such market, the
Local JV in such market) on the same facilities in such market for the
same or similar kinds (including, subject to the following paragraph,
specifications and standards, capacity and quality metrics) of Advanced
Data Services on no less favorable terms. Comcast Parent will notify
Sprint Parent immediately of any agreement that may be reached for
Rights of Use that would be subject to the preceding sentence.
The parties understand and agree that if, by virtue of physical
limitations of the applicable facilities, the Cable Subsidiary cannot
ensure identical specifications and standards or quality metrics for
Rights of Use to multiple parties, then the Cable Subsidiary may make
economic distinctions with respect to the Rights of Use it offers that
would be taken into account in determining whether the covenant of
Comcast Parent in this Section 2(b)(i) to offer the applicable services
on no less favorable terms has been satisfied. By way of example, if an
IXC were willing to pay a premium for Rights of Use that included a
guarantee of no blocking, Sprint Parent would be required to pay that
premium in order for it to exercise its rights under this Section
2(b)(i) to obtain that guarantee on no less favorable terms,
notwithstanding that it would then be paying more for its Rights of Use
than the other IXCs that did not have such guarantee or than any other
IXC if such guarantee could not be made available to more than one
Person.
(ii) Sprint Parent agrees that if, during the Term, it or any of its
Controlled Affiliates proposes to provide Local Telephony Services on a
resale basis in any market in the Territory in which a Cable Subsidiary
has facilities, it will promptly so notify Comcast Parent and (x) if the
facilities that are in place meet Sprint Parent's specifications and
standards (including time to market) for the provision of such Local
Telephony Services, then Sprint Parent will, and will cause its
Controlled Affiliates to, cooperate with Comcast Parent in good faith to
negotiate (and Comcast Parent will cooperate with Sprint Parent in good
faith to negotiate) mutually satisfactory terms for the provision of
Local Telephony Services under the Sprint Brand using the facilities of
such Cable Subsidiary and (y) if the facilities that are in place do not
meet Sprint Parent's specifications and standards (including time to
market) for the provision of Local Telephony Services or if the parties
have not reached agreement upon the terms of the provision of such
services as contemplated by clause (x) above, then Sprint Parent will or
will cause its applicable Controlled Affiliate to provide Comcast Parent
with a non-exclusive sales agency agreement for such Local Telephony
Services on terms and conditions no less favorable to Comcast Parent and
its Controlled Affiliates than are offered to any other non-exclusive
sales agent for such Local Telephony Services in such market, provided
such obligation shall terminate if Comcast Parent or any of its
Controlled Affiliates commence the offering of facilities-based Local
Telephony Services in the applicable geographic area. The parties
acknowledge that there will be a presumption of good faith in the
negotiations pursuant to clause (x) above and that a party will not be
deemed to have failed to act in good faith solely as a result of taking
non-negotiable positions or different or inconsistent positions with
respect to different markets or a position that is different from any
position that has been accepted by another Cable Parent. The
obligations of Sprint Parent and Comcast Parent to engage in such
negotiations under this Section 2(b)(ii) with respect to a particular
market will continue for a period of 90 days following the receipt by
Comcast Parent of the notice referred to in the first sentence of this
Section 2(b)(ii) and will terminate at the end of such 90-day period.
Nothing contained in this Section 2(b)(ii) shall be construed to
restrict Sprint Parent or its Controlled Affiliates from rolling out
Local Telephony Services in any market or delay such rollout, subject to
compliance with the applicable requirements of Section 2(a) above,
provided that neither Sprint Parent nor its Controlled Affiliates will
enter into any agreements that are not terminable by it on not less than
30 days' notice if the parties reach agreement within the 90-day period.
SECTION 3. Local Joint Agreement; Teleport
(a) During the Term, Comcast Parent will notify Sprint Parent whenever a
Cable Subsidiary of Comcast Parent intends to upgrade its distribution
facilities for Local Telephony Services (or through some other means
offer Local Telephony Services) in a particular market (other than in
the context contemplated by Section 4(a)) but in no event earlier than
one year prior to the date it intends to commence offering Local
Telephony Services in such market. There will be a presumption that if
Comcast Parent notifies Sprint Parent that a Cable Subsidiary of Comcast
Parent intends to upgrade its distribution facilities in a particular
market (or through some other means offer Local Telephony Services) that
it intends to commence offering Local Telephony Services in such market
within one year. Comcast Parent and Sprint Parent will cooperate with
each other in good faith to negotiate mutually satisfactory terms for
the provision of Local Telephony Services under the Sprint Brand in such
market using the local distribution facilities of the applicable Cable
Subsidiary (or such other means). The parties acknowledge that there
will be a presumption of good faith in such negotiations and that a
party will not be deemed to have failed to act in good faith solely as a
result of taking non-negotiable positions or different or inconsistent
positions with respect to different markets or a position that is
different from any position that has been accepted by another Cable
Parent. For a period of 90 days following Sprint Parent's receipt of
the notice required pursuant to the first sentence of this Section 3
with respect to a particular market, Comcast Parent, Sprint Parent and
their respective Controlled Affiliates shall not negotiate with any
other Person regarding the provision of Local Telephony Services in such
market; provided, however, that Comcast Parent and Sprint Parent will
commence immediately such negotiation with respect to those markets
listed on Schedule 2 attached hereto (the "Specified Markets") and the
period of exclusive negotiation with respect to the Specified Markets
shall expire on April 30, 1996. The obligations of Comcast Parent and
Sprint Parent under this Section 3 with respect to a particular market
shall terminate upon expiration of the exclusive negotiation period
provided in this Section 3 with respect to such market. The contractual
arrangements between Comcast Parent and Sprint Parent or their
respective Controlled Affiliates regarding the provision of such
services in a particular market may take the form of a local joint
venture agreement or another form as the applicable parties may
negotiate and upon such terms (including economic terms, scope, etc.) as
they may agree (such joint venture or other entity formed by, or other
agreement or arrangement between, Sprint Parent and Comcast Parent or
their respective Controlled Affiliates for the purposes contemplated by
this Section 3, a "Local JV"). If Sprint Parent or any of its
Controlled Affiliates are providing Local Telephony Services on a resale
basis in a market at the time the terms of a Local JV are agreed upon
with respect to such market then Sprint Parent shall or shall cause its
applicable Controlled Affiliates to offer to transfer to the Local JV
its business of providing Local Telephony Services in such market and,
at Comcast Parent's option, the assets used in such business, at a price
determined on the same basis as would then be applicable to a transfer
of a business under Section 6.3(p) of the Partnership Agreement. If
Sprint Parent and Comcast Parent have not reached agreement upon the
terms of a Local JV for a particular market (an "Unresolved Market") by
the expiration of the 90-day period of exclusive negotiation and, at
that date or at any time thereafter prior to Sprint Parent and Comcast
Parent or their respective Controlled Affiliates having entered a Local
JV with respect to the Unresolved Market, Sprint Parent or one of its
Controlled Affiliates has entered a Local JV with any Cable Parent or a
Controlled Affiliate thereof with respect to a market the
characteristics of which that are relevant to the business of Local
Telephony Services are similar to those of the Unresolved Market, then
Sprint Parent shall offer to enter into or cause one of its Controlled
Affiliates to enter into a Local JV with a Controlled Affiliate of
Comcast Parent for the Unresolved Market on terms and conditions no less
favorable to Comcast Parent and its Controlled Affiliates than those
Sprint Parent (or its Controlled Affiliate) has agreed to with respect
to such other similar market. Sprint Parent agrees to disclose to
Comcast Parent promptly the terms of any agreements it may reach with
Cox Parent or TCI Parent or their respective Controlled Affiliates
regarding the provision of Local Telephony Services in any market, and
Comcast Parent hereby consents to the disclosure by Sprint Parent to Cox
Parent and TCI Parent of any agreement that Comcast Parent and Sprint
Parent may reach as contemplated by this Section 3. Nothing contained
in this Section 3 or in Section 2(b)(ii) shall be construed to restrict
any Controlled Affiliate of Comcast Parent from rolling out Local
Telephony Services in any market or delay such rollout, subject to
compliance with Section 2 above.
(b) It is the present goal and intention of the parties to continue to
attempt to integrate the businesses and activities of Teleport with the
business and activities of MajorCo as promptly as practicable, provided
that the parties can achieve mutually satisfactory agreements for such
integration and for the provision of Local Telephony Service in the
Specified Markets. The foregoing is intended to set forth the parties'
present intentions concerning their future efforts with respect to the
achievement of their mutual goal of integrating MajorCo and Teleport,
but is not intended to and does not create a legally binding obligation,
it being understood that the Cable Parents and their respective
Controlled Affiliates remain free to pursue activities that they, in
their sole discretion, consider to be in the best interests of Teleport
and its owners, and each party remains free to determine, in its sole
discretion, to proceed, or agree that MajorCo would proceed, with any
proposed transaction involving Teleport.
Without limiting any party's ability to exercise its sole discretion
with respect to matters covered in this Section 3(b), Sprint Parent has
advised the Cable Parents that the failure of a proposed agreement
regarding Teleport to include the following may result in Sprint
Parent's refusal to enter into an agreement with respect to Teleport,
were any such agreement to be proposed: (i) the contribution to MajorCo
of at least a 62.5% ownership interest in Teleport under the same
economic terms as would have applied if the Teleport Contribution
Agreement had not been terminated (which, in Sprint Parent's opinion,
would require adjustments for the loss of tax benefits arising from the
reorganization of Teleport into corporate form, if such were to occur);
(ii) governance of the Teleport interests held by MajorCo in accordance
with the current MajorCo governance provisions; (iii) modification of
the Teleport governance provisions to provide that all matters will be
resolved by simple majority vote, both at the governing board and
stockholder/partner level, and to eliminate all special rights of
partners to elect governing board members or to approve or disapprove
transactions involving stockholders/partners and their respective
affiliates (provided that such transactions are on arms' length terms);
(iv) modification of the scope and exclusivities of Teleport in a manner
that rationalizes the operations of Teleport, MajorCo and the individual
wireline efforts of the Partners, which would include the exclusion of
Teleport from the wireless business, the limitation of Teleport's
residential switched activities to the New York market, and a
reconciliation of the respective activities of Teleport and the Local
JVs relating to the small business market; (v) the marketing of all of
Teleport's retail products under the Sprint Brand; and (vi) receipt of
satisfactory consents and waivers from Continental Cablevision,
Inc. ("Continental") and its Subsidiaries or removal of Continental or
the applicable Subsidiary as a Teleport stockholder/partner.
SECTION 4. Certain Exceptions to Undertakings.
(a) The covenants of Comcast Parent in Sections 2 and 3 shall not apply
with respect to a Bulk Purchaser in circumstances where, in the
reasonable judgment of Comcast Parent, a Cable Subsidiary or other
Controlled Affiliate of Comcast Parent needs to offer to a Bulk
Purchaser of cable television services a package of services which
include one or more Local Telephony Services and/or Long Distance
Telephony Services in order to compete with an actual or anticipated
offer to such Bulk Purchaser by a provider unaffiliated with Comcast
Parent (whether facilities-based, as a reseller or agent or otherwise)
of television/telephony services and the needed service is not then
available to Comcast Parent for inclusion in such a package from Sprint
Parent or its Affiliates on competitive economic terms. The covenants
of Comcast Parent in Sections 2(b)(i) and 3, and the rights of Sprint
Parent under such Sections, shall not become applicable solely as a
result of the provision of such services to the Bulk Purchaser.
(b) If Sprint Parent and Comcast Parent have not reached an agreement on
mutually satisfactory terms for the provision of Local Telephony
Services in a particular market through a Local JV within the exclusive
negotiation period with respect to such markets contemplated by Section
3, then the provisions of Section 2(a)(i) will cease to apply with
respect to Long Distance Telephony Services in such market, unless
Sprint Parent makes available or causes to be made available to Comcast
Parent or its applicable Controlled Affiliate on competitive economic
terms Sprint-Branded Long Distance Telephony Services to offer and
promote, and package with other products and services to offer and
promote, to its customers, and for which it would be authorized to act
as non-exclusive sales agent, in that market.
(c) If Sprint Parent and Comcast Parent have not reached an agreement on
mutually satisfactory terms for the provision of Local Telephony
Services in a particular market through a Local JV within the exclusive
negotiation period with respect to such market contemplated by Section 3
and Sprint Parent or any of its Controlled Affiliates is providing
(through resale or otherwise) Local Telephony Services in such market,
then the provisions of Section 2(a)(i) will cease to apply in such
market, unless Sprint Parent makes available or causes to be made
available to Comcast Parent or its applicable Controlled Affiliate on
competitive economic terms Sprint-Branded Long Distance Telephony
Services to offer and promote, and package with other products and
services to offer and promote, to its customers, and for which it would
be authorized to act as non-exclusive sales agent, in that market.
(d) Comcast Parent's obligations under this Agreement with respect to
any Person that becomes a Cable Subsidiary or Controlled Affiliate of
Comcast Parent after the date hereof and any cable television system or
facilities acquired by Comcast Parent or a Cable Subsidiary after the
date hereof shall be subject to any contrary provisions of any
agreements with Persons (other than Comcast Parent or a Controlled
Affiliate of Comcast Parent) to which such Cable Subsidiary, Controlled
Affiliate or cable television system or facilities are subject prior to
the time such Person became a Cable Subsidiary or Controlled Affiliate
or such system or facilities were acquired.
(e) Sprint Parent's obligations under this Agreement with respect to any
Person that becomes a Controlled Affiliate of Sprint Parent after the
date hereof shall be subject to any contrary provisions of any
agreements with Persons (other than Sprint Parent or a Controlled
Affiliate of Sprint Parent) to which such Controlled Affiliate is
subject prior to the time such Person became a Controlled Affiliate.
(f) Notwithstanding anything to the contrary in this Agreement, the
provisions of Section 2(a) will not apply with respect to the Comcast
Area.
SECTION 5. Consent to Jurisdiction.
(a) Each of Sprint Parent and Comcast Parent 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 State 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
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 of Sprint Parent and Comcast Parent hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and
effectively do so, any objections 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 New York. Each of
Sprint Parent and Comcast Parent 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 personal jurisdiction over it.
(c) Each of Sprint Parent and Comcast Parent irrevocably consents to
service of process in the manner provided for the giving of notices
pursuant to this Agreement, provided that such service shall be deemed
to have been given only when actually received by it. Nothing in this
Agreement shall affect the right of a party to serve process in any
other manner permitted by law.
SECTION 6. Waiver; 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 entitled to enforce such term, but any such
waiver shall be effective only if in a writing signed by the party
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.
SECTION 7. Assignment.
Except with respect to an assignment in connection with a transfer (in a
single transaction or series of related transactions) of all or a
Substantial Portion of the cable television system assets (in the case
of Comcast Parent) or long distance telecommunications business assets
(in the case of Sprint Parent) owned by Comcast Parent or Sprint Parent,
respectively, directly or through Controlled Affiliates immediately
prior to the transfer (or the first transfer of the series) (a
"Permitted Transaction") to (i) the transferee of such assets or (ii)
the Parent of such transferee, this Agreement shall not be assignable
without the prior written consent of the other party. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, and shall be binding
upon the transferee of such party in a Permitted Transaction (which
transferee the applicable transferor shall cause to agree in writing to
be so bound in connection with such Permitted Transaction). Nothing in
this Agreement, whether express or implied, shall be construed to give
any Person other than the parties hereto and their respective successors
and permitted assigns any legal or equitable right, remedy or claim
under or in respect of this Agreement.
SECTION 8. 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 and such illegality, invalidity or
unenforceability shall not affect the validity or legality of the
remainder of this Agreement.
SECTION 9. Governing Law.
The internal laws of the State of Delaware (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.
SECTION 10. Waiver of Jury Trial.
Sprint Parent and Comcast Parent each irrevocably waives to the extent
permitted by law all rights to trial by jury in any action, proceeding
or counterclaim arising out of or relating to this Agreement.
SECTION 11. Notices.
Any notice, payment, demand or communication required or permitted to be
given by any party 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), charges prepaid and addressed
as follows, or to such other address or number as such party may from
time to time specify by notice to the other party:
(a) If to Comcast Parent, to:
Comcast Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: General Counsel
with copies to:
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
(b) If to Sprint Parent, to:
Sprint Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Chief Financial Officer
with copies to:
Sprint Spectrum, L.P.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Corporate Secretary
King & Spalding
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Any party may from time to time specify a different address by 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) four (4) Business Days after
the same are sent by certified or registered mail, postage prepaid,
return receipt requested, (ii) when delivered by hand or transmitted by
facsimile (with acknowledgment received and, in the case of a facsimile
only, a copy of such notice is sent no later than the next Business Day
by a reliable overnight courier service, with acknowledgment of
receipt), or (iii) one (1) Business Day after the same are sent by a
reliable overnight courier service, with acknowledgment of receipt.
SECTION 12. Entire Agreement.
The provisions of this Agreement 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.
SECTION 13. Term.
This Agreement and the rights and obligations of the parties hereunder
will terminate on January 31, 2001, provided that this Agreement and the
rights and obligations of the parties shall earlier terminate on the
first to occur of (i) January 31, 1999 if at that date Local Telephony
Services are being offered under the Sprint Brand by Comcast Parent and
its Controlled Affiliates (or Local JVs) through facilities of its Cable
Subsidiaries passing fewer than 25% of the aggregate number of
Households Passed by facilities of Comcast Parent and its Cable
Subsidiaries that have been upgraded for, and through which Comcast
Parent and its Controlled Affiliates (or Local JVs) are providing, Local
Telephony Services, (ii) such date as of which neither Comcast Parent
nor any of its Controlled Affiliates is a partner in MajorCo and (iii)
such date as of which neither Sprint Parent nor any of its Controlled
Affiliates is a partner in MajorCo.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the date first above written.
COMCAST CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. Block
Name: ▇▇▇▇▇▇ ▇. Block
Title: Vice President
SPRINT CORPORATION
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President
SCHEDULE 1
Certain Defined Terms
II. Local Telephony Services
"Local Telephony Services" shall mean wireline "local exchange, access,
and transport services" offered or provided to residences in the
Territory that are functionally equivalent (from the customer's
perspective) to circuit-based offerings (e.g., a POTS access line that
provides to the user a circuit of equal and fixed bi-directional
transmission capacity). Local Telephony Services may utilize an
underlying network technology that is not circuit-based as long as the
offering to the residence is (from the customer's perspective)
functionally equivalent to one of the "local exchange, access and
transport" services listed below. Local Telephony Services shall not
include Advanced Data Services, the Non-Exclusive Services and the
Excluded Businesses.
Local Telephony Services shall include the provision and transport of
intra-LATA wireline calls, except for 75 Mile Plus Calls.
Local Telephony Services are not restricted by form (e.g., analog or
digital), method of origination (e.g., voice, data, telemetry, etc.), or
the content transmitted by the customer.
The "local exchange, access, and transport" services are:
1. Local dial tone service for residential customers (i.e., basic
service, additional lines, EAS, ISDN, etc.);
2. Ancillary basic service features such as tone dialing, custom
calling, CLASS, Centrex, and functionality for number portability;
3. Access for switched and dedicated intra-LATA and inter-LATA service;
4. Private line services not interconnected with an inter-LATA private
line network (including back haul for wireless services); and
5. "Video telephony", which shall mean circuit switched two-way
communications services that are not Excluded Businesses providing:
a. point-to-point two-way audio/video connectivity;
b. point-to-point one-way video connectivity and two way audio
connectivity;
c. multi-point to multi-point audio/video connectivity; or
d. access for intra-LATA and inter-LATA video telephony.
III. Long Distance Telephony Services
"Long Distance Telephony Services" shall mean (other than as provided in
Sections I and V of this Schedule 1) (a) wireline inter-LATA service to
residences in the Territory, except for that subject to local exchange
carrier inter-LATA waivers or (b) 75 Mile Plus Calls to residences in
the Territory, but in each case excluding any of such services that are
also Advanced Data Services or services described in clauses (2) or (3)
of the definition of Excluded Business in Section VI below.
IV. Advanced Data Services
"Advanced Data Services" shall mean wireline services offered or
provided to residences in the Territory that are functionally equivalent
to asynchronous offerings (e.g., an internet access service with
instantaneously varying data rates and equal or unequal bi-directional
transmission capacity). Advanced Data Services shall not include the
Local Telephony Services, the Non-Exclusive Services, and those
Excluded Businesses referred to in clauses (1), (2) and (3) of the
definition of Excluded Businesses in Section VI of this Schedule 1.
V. Entertainment Services
"Entertainment Services" means the delivery via a distribution system
(whether wired or wireless, and whether terrestrial or satellite-based)
of entertainment and, except to the extent contemplated under
Non-Exclusive Services, other content-based services, which services in
either such case are competitive with services typically provided by
cable television companies to their customers at the date of this
Agreement. The provision of Internet access services, incidental
audio/video content related to the provision of Internet access services
(e.g. browsers, navigators, logos, customer service, sales) and on-line
hosting services shall not be deemed to be Entertainment Services.
VI. Non-Exclusive Services
"Non-Exclusive Services" means each of the following:
1. Incidental services to other Local Telephony Services, including
billing services and the installation, maintenance, repair, sale or
lease of customer premises equipment or customer controlled
equipment.
2. 500 Services.
3. Meeting services, such as video or other teleconferencing in which
the provider does not create nor resell the content of such service.
4. Server-based content services customarily provided by local exchange
telephone companies, consisting of directory assistance, operator
service, time, temperature and similar information services that are
voice only and TDD relay.
5. Incidental data services to support signaling, billing and system
diagnostics and management for audio/video connectivity.
6. Incidental audio/video content (e.g., logos, customer service,
sales), that are directly related to the provision of video
telephony.
7. Enhanced services such as voice mail, e-mail, facsimile store and
forward.
8. Video telephony enhanced services, such as video mail, store and
forward, and customer service, but excluding any such enhanced
service that is an Excluded Business.
VII. Excluded Business
"Excluded Business" means each of the following:
1. Long Distance Telephony Services.
2. The provision of entertainment and, except to the limited extent
contemplated under Non-Exclusive Services, other content-based services.
3. The provision or transport of wireline services using unidirectional
transmission capacity.
4. The provision or transport of wireline services using unequal
bi-directional transmission capacity.
VIII. Definitions.
As used in this Schedule:
1. The term "LATA" means a Local Access and Transport Area established
pursuant to the criteria set forth in Section 4(g) of the MFJ, as
approved in United States v. Western Electric Company, Inc., et. al.,
569 F. Supp. 990 (D.D.C. 1983), and as amended by subsequent orders,
regardless of whether the LATA boundaries continue to be applied in
future governmental regulation of the wireline telecommunications
industry. In the event of the cessation of use of LATA boundaries by
a telecommunications governmental regulation or court order, then the
LATA boundaries in effect at the time of cessation of such use shall
be deemed to be the LATA boundaries for purposes of this Agreement.
2. The term "Rate Center" means a point within a geographic area
designated by agreement of Comcast Parent and Sprint Parent as the
Rate Center and shall be used for measuring distances to and from
such geographic area. Each geographic area shall have one Rate
Center. The Rate Center shall be near the geographic center of the
geographic area.
3. The term "75 Mile Plus Calls" means wireline calls between end users
whose Rate Centers are greater than 75 miles apart.
4. The term "residences" will have its customary meaning unless and
until the scope of Teleport's business is confined by agreement of
its owners so as to exclude (or make non-exclusive) serving "small
business customers", in which event the term "residences" will also
include "small business customers". The term "small business
customer" for this purpose means a non-residential customer having
five or fewer Access Lines. The term "Access Line" means a
voice-grade message telephone line (DS-0 equivalent) that can
originate or terminate telecommunications services, which need not
have a separate telephone number, and is interconnected with the
public switched telephone network; provided, that an ISDN BRI shall
count as one Access Line.
