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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: Lori Sassoon, Assistant City
Administrator
Subject: Resolutions conditionally
authorizing the assignment of a cable
television franchise by Adelphia Cablevision
to Time Warner Cable
Dept: City Administrator's Office
Date: December 21, 2005
MICC Meeting Date: January 9, 2006
Synopsis of Previous Council Action:
January 2004 - Franchises extended until July 8, 2004 by Resolution No. 2004-18
August 2, 2004 - Franchises extended untii January 29, 2005 by Resolution No. 2004-249
January 24,2005 - Franchises extended until July 28,2005 by Resolution No. 2005-14
July 18, 2005 - Franchises extended until January 13, 2005 by Resolution No. 2005-236
Recommended Motion:
Adopt resolutions.
(@~~
Signature
Contact person: Lori Sassoon
Phone:
5122
Supporting data attached:
staff report
Ward:
all
FUNDING REQUIREMENTS:
Amount: none
Source: (Acct. No.)
(Acct. Description)
Finance:
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Agenda Item No. /0
j- ~-D~
5T AFF REPORT
Subiect:
Resolutions conditionally authorizing the assignment of a cable television franchise by Adelphia
Cablevision to Time Warner Cable
Backl.!:round:
On June 14,2005, Comcast and Time Warner filed an FCC Form 394 Application with the City
of San Bernardino asking for approval of a transfer of a Cable Television Franchise controlled by
Adelphia Communications through Century-TCl California, L.P. to Time Warner Cable Inc. At
the same time, Time Warner filed an FCC Form 394 Application with the City asking for
approval of a transfer of a Cable Television Franchise controlled by Adelphia Communications
Corporation to Time Warner Cable Inc.
Ultimately, should both transactions meet all the necessary approvals, Time Warner subsidiaries
would control both of the Adelphia franchises. Once a Form 394 is filed, the City has 120 days in
which to approve or deny the franchise transfer. Section 14.08.400 of the San Bernardino Municipal
Code allows the City to review and approve the financial, technical, and legal qualifications of Time
Warner in connection with the proposed assignment of the franchises. If no action is taken, the
francpise transfers are deemed approved by operation oflaw. Initially, the 120th day was October 7,
2005.
During that initial 120 day period, the City commissioned an audit of Adelphia's franchise fees and
utility users' tax payments, and the audit results were expected in late October. In September, the
City requested through its outside counsel and consultants an extension of the 120 day period from
Time Warner to allow time for the audit to be completed. On October 3, Time Warner agreed to an
extension to the first Council meeting in December. In late December, Time Warner agreed to
another extension until January 9.
The proposed resolutions will approve the transfers subject to certain conditions. The key condition
is that a payment of$320,486 will be made to the City for audit findings and audit costs for calendar
years 2001,2002,2003,2004, and the first six (6) months of2005. This settlement amount has been
agreed to by both parties.
Financial Impact:
None by this action. Ifno action is taken, the franchise transfer requests will be deemed approved by
operation oflaw. That inaction might impact the City's ability to collect payments due as a result of
audit findings.
Recommendation:
Adopt resolutions
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RESOLUTION NO. 2006
RESOLUTION OF THE MAYOR AND COMMON COUNCIL
OF THE CITY OF SAN BERNARDINO CONDITIONALLY
AUTHORIZING THE ASSIGNMENT OF A CABLE
TELEVISION FRANCHISE BY ADELPHIA CABLEVISION
OF INLAND EMPIRE, LLC TO TIME WARNER NY CABLE
LLC, AN INDIRECT SUBSIDIARY OF TIME WARNER
CABLE INC.
RECIT ALS:
A. Adelphia Cable vision of Inland Empire, LLC ("Franchisee"), is the
authorized holder of a franchise ("Franchise") that authorizes the construction, operation, and
maintenance of a cable television system within the City of San Bernardino ("Franchise
Authority").
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B. On April 20, 2005, Time Warner NY Cable LLC ("TWNY"), an indirect
subsidiary of Time Warner Cable Inc., and Comcast Corporation ("Comcast"), each entered into
separate definitive agreements to acquire, collectively, substantially all of the assets of Adelphia
Communications Corporation ("Adelphia") for a total of $12.7 billion in cash (of which TWNY
will pay $9.2 billion and Comcast will pay the remaining $3.5 billion) and 16% of the common
stock of Time Warner Cable Inc. At the same time that Comcast and TWNY entered into the
agreements to purchase Adelphia's assets, Time Warner Cable Inc., Comcast, and their
respective subsidiaries also agreed to swap certain cable systems to enhance their respective
16 geographic clusters of subscribers ("Cable Swaps"). The asset purchase transaction by TWNY
that includes the City's cable franchise is not, however, dependent upon the consummation of the
17 Cable Swaps transaction, nor upon certain redemption transactions whereby Time Warner Cable
Inc., the parent company of TWNY, will redeem Comcast's 17.9 percent equity interest in Time
18 Warner Cable Inc. in exchange for $1.9 billion in cash plus 100 percent of the common stock of
19 a Time Warner Cable subsidiary that will own cable systems located in four states other than
California.
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C. On June 14,2005. the Franchise Authority received from the Franchisee
and from Time Warner NY Cable LLC ("Transferee"), an application for the assignment of the
existing Franchise. This application included FCC Form 394 titled "Application for Franchise
22 Authority Consent to Assignment or Transfer of Control of Cable Television Franchise."
23 Supplemental information was provided to the Franchise Authority by the Transferee on July 22,
2005.
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D. In accordance with Section 14.08.400 of the San Bernardino Municipal
25 Code, the Franchise Authority has the right to review and to approve the financial, technical, and
legal qualifications of the Transferee in connection with the proposed assignment of the
26 Franchise.
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E. The staff of the Franchise Authority has reviewed the documentation that
28 accompanied FCC Form 394 and, based upon the representations set forth in that documentation,
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RESOLUTION OF THE MA YOR AND COMMON COUNCIL
OF THE CITY OF SAN BERNARDINO CONDITIONALLY
AUTHORIZING THE ASSIGNMENT OF A CABLE
TELEVISION FRANCHISE BY ADELPHIA CABLEVISION
OF INLAND EMPIRE, LLC TO TIME WARNER NY CABLE
LLC, AN INDIRECT SUBSIDIARY OF TIME WARNER
CABLE INC.
has concluded that the proposed Transferee has the requisite financial, technical, and legal
qualifications to adequately perform, or to ensure the performance of, all obligations required of
the Franchisee under the Franchise, and that the Transferee will be bound by all existing terms,
conditions, and obligations of the Franchise as it currently exists or as it may be modified or
superseded by the parties prior to the closing of the asset purchase transaction described above in
Recital (B).
NOW, THEREFORE, BE IT RESOLVED BY THE MA YOR AND COMMON
COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
Section 1. In accordance with Section 14.08.400 of the San Bernardino
Municipal Code, the Franchise Authority consents to and approves the proposed assignment of
the Franchise by Adelphia Cablevision of Inland Empire, LLC to Time Warner NY Cable LLC,
which, upon the closing of the asset purchase transaction, will be an indirect subsidiary of Time
Warner Cable Inc., and will be qualified to conduct business as a limited liability company in the
State of California.
16 Section 2. The authorization, consent and approval of the Franchise Authority
to the proposed assignment is conditioned upon compliance by the Franchisee or the Transferee
17 with the following requirements:
18 (a) Within 60 days after the adoption of this resolution, the Franchisee
and the Transferee will execute and file in the office of the City Clerk an "Assignment and
19 Assumption Agreement" in substantially the form attached to this resolution as Exhibit A. The
20 Mayor is authorized to execute that document and thereby evidence the written consent of the
Franchise Authority to the assignment and assumption of all rights and obligations under the
21 Franchise.
22 (b) An original or conformed copy of the written instrument
evidencing the closing and consummation of the asset purchase transaction involving the
23 proposed assignment of the Franchise must be filed in the office of the City Clerk within 60 days
24 after that closing and consummation.
25 Section 3. If the conditions set forth above in paragraph (a) of Section 2 are not
satisfied within the period of time specified in that paragraph, then the authorization and consent
26 of the Franchise Authority to the proposed assignment as provided for in this resolution will be
revoked and rescinded without further action by the Franchise Authority, and the FCC Form 394
27 application will be denied in all respects. In such event, the City Administrator is authorized and
28 directed to give written notice to all affected parties of that revocation and rescission, which will
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL
OF THE CITY OF SAN BERNARDINO CONDITIONALLY
AUTHORIZING THE ASSIGNMENT OF A CABLE
TELEVISION FRANCHISE BY ADELPHIA CABLEVISION
OF INLAND EMPIRE, LLC TO TIME WARNER NY CABLE
LLC, AN INDIRECT SUBSIDIARY OF TIME WARNER
CABLE INC.
be deemed to be without prejudice to the right of those parties to submit a new FCC Form 394 to
the Franchise Authority if required by the Franchise or local ordinance.
8 Section 4. The City Clerk is directed to transmit a certified copy of this
resolution to the following persons:
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Mr. Roger Keating, President
Los Angeles Division
Time Warner Cable Inc.
959 South Coast Drive, Suite 300
Costa Mesa, CA 92626
Brad M. Sonnenberg, Esq.
Executive Vice President,
General Counsel and Secretary
Adelphia Communications Corporation
5619 DTC Parkway
Denver, CO 80111
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO CONDITIONALLY AUTHORIZING THE
ASSIGNMENT OF A CABLE TELEVISION FRANCHISE BY ADELPHIA
CABLEVISION OF INLAND EMPIRE, LLC TO TIME WARNER NY
CABLE LLC, AN INDIRECT SUBSIDIARY OF TIME WARNER CABLE
INC.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
Common Council of the City of San Bernardino at a
meeting thereof,
held on the
day of
, 2006, by the following vote, to wit:
COUNCIL MEMBERS:
AYES
ABSTAIN
ABSENT
NAYS
ESTRADA
LONGVILLE
MCGINNIS
DERRY
KELLEY
16 JOHNSON
17 MCCAMMACK
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CITY CLERK
The foregoing Resolution is hereby approved this _ day of
,2006.
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JUDITH V ALLES, Mayor
City of San Bernardino
Approved as to form and
legal content:
JAMES F. PENMAN,
26 City Attorney
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EXHmIT A
ASSIGNMENT AND ASSUMPTION AGREEMENT
AND
GUARANTEE OF ASSIGNEE'S OBLIGATIONS
(CABLE TELEVISION FRANCHISE AGREEMENT)
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement") is entered
into this _ day of ,2006, between Adelphia Cablevision of Inland Empire, LLC, a
Delaware limited liability company ("Assignor"), Time Warner NY Cable LLC, a Delaware limIted
liability company ("Assignee"), and the City of San Bernardino, a California municipal corporation
("Franchise Authority").
RECITALS:
A. Assignor is the authorized holder of a franchise that authorizes the construction,
operation, and maintenance of a cable television system within the City of San Bernardino, California.
B. Subject to the prior consent of the Franchise Authority, Assignor desires to
assign to Assignee, and Assignee desires to assume, effective as of the closing of the asset purchase
transaction described in the FCC Form 394 as filed with the Franchise Authority on June 14,2005 (the
"Closing") all rights, duties, and obligations under the cable television franchise agreement between the
Franchise Authority and the Assignor ("Franchise Agreement") as it currently exists or as it may be
modified or superseded by the parties prior to the Closing.
THE PARTIES AGREE AS FOLLOWS:
1. Effective as of the Closing, Assignor assigns and transfers to Assignee all of
Assignor's rights, duties, and obligations under the Franchise Agreement.
2. Effective as of and contingent upon the occurrence of the Closing, Assignee
covenants and agrees with Assignor and with the Franchise Authority to assume all rights and to assume
and perform all duties and obligations of the Assignor under the Franchise Agreement The Franchise
Authority reserves any and all rights with respect to any non-compliance issues that may exist prior to the
closing and Assignee reserves any and all rights and defenses with respect to any such non-compliance
Issues.
3. Franchise Authority consents to the assignment and transfer by Assignor to
Assignee of all rights, duties, and obligations specified in the Franchise Agreement, contingent upon the
execution by Time Warner Cable Inc., as guarantor, of the "Guarantee of Assignee's Obligations" that is
attached as Schedule I to thiS Agreement.
4. This Agreement will become operative and enforceable upon the closing of the
asset purchase transaction described in the FCC Form 394 as filed with the Franchise Authority on
June 14,2005.
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TO EFFECTUATE THIS AGREEMENT, the parties have caused this Assignment and
Assumption Agreement to be executed by their duly authorized representatives as of the date set forth
below the authorized signature.
"ASSIGNOR"
ADELPHIA CABLEVISION OF ORANGE
COUNTY, LLC, a Delaware limited liability
company
By:
(authorized officer)
Title:
APPROVED AS TO FORM:
Date:
Legal Counsel
"ASSIGNEE"
TIME WARNER NY CABLE LLC, a Delaware
limited liability company
By:
(Authorized Officer)
Title:
APPROVED AS TO FORM:
Date:
Legal Counsel
"FRANCHISE AUTHORITY"
CITY OF SAN BERNARDINO
APPROVED AS TO FORM
AND LEGAL CONTENT:
By:
Mayor
Date:
City Attorney
ATTEST:
City Clerk
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SCHEDULE I
to
ASSIGNMENT AND ASSUMPTION AGREEMENT
AND
GUARANTEE OF ASSIGNEE'S OBLIGATIONS
GUARANTEE
GUARANTEE, dated as of , 2006, made by TIME WARNER CABLE INC., a
Delaware corporation ("Guarantor"), in favor of the City of San Bernardino, California,
("Beneficiary").
For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and to induce Beneficiary to timely consent to the transfer of the cable television
franchise issued by Beneficiary and currently held by Adelphia Cablevision ofInland Empire,
LLC (the "Franchise") to Time Warner NY Cable LLC ("Transferee") in accordance with the
Federal Communications Commission Form 394 filed by Transferee, Guarantor agrees as
follows:
I. Interpretive Provisions.
A. The words "hereof," "herein" and "hereunder" and words of similar import, when
used in this Guarantee, shall refer to this Guarantee as a whole and not to any
particular provision of this Guarantee, and section and paragraph references are to
this Guarantee unless otherwise specified.
B. The meanings given to terms defined herein shall be equally applicable to both
the singular and plural forms of such terms.
II. Guarantee.
A. Effective upon the close of the asset purchase transaction, Guarantor
unconditionally and irrevocably guarantees to Beneficiary the timely and
complete performance of all Transferee obligations under the Franchise (the
"Guaranteed Obligations"). The Guarantee is an irrevocable, absolute, continuing
guarantee of payment and performance, and not a guarantee of collection. If
Transferee fails to pay any of its monetary Guaranteed Obligations in full when
due in accordance with the terms of the Franchise, Guarantor will promptly pay
the same to Beneficiary or procure payment of same to Beneficiary. Anything
herein to the contrary notwithstanding, Guarantor shall be entitled to assert as a
defense hereunder any defense that is or would be available to Transferee under
the Franchise or otherwise.
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III, Wa;ve<, Gua,an.o, wai V" any and all no lice of the crea.ion, renewal, ex'ension 0'
aooroal of any of the Gu_teed Ohligations and noli" of 0' proof of relian" by Beneficiary
upon this Guaran.ee 0' ac"plan" of this Gu_tee, Gua"",to, wai ves diligen", Ptesentmeot,
pro.". and demand fo, pa)ment to Ttansferee 0' Guarnnto, with respect to the GU_teed
Ohli galioos, provided, howevet, that Guatanto, sh'lll he fumished with a copy of any oolice of 0'
relating to default undet the F'anchise to which T'ansfetee is entitled 0' which is seNed upon
Transferee at the same time such notice is sent to or served upon Transferee.
B This Guantntee shall temain in full fo"e and effeel until the earliest '0 ooou, of
(i) Petfonoan" in full of all Guaranteed Ohlig"ions at a lime when no additiona
Guaranteed Obligations 'emain outs"nding 0' will "croe to T'anSfetee undet th,
Fmochise, and (ii) subjeet to any ,equired consent oflhe Beneficiary, any direet
or indirect transfer of the Franchise from Transferee to (or direct or indirect
acquisition of Transferee or any successor thereto by (whether pursuant to a sale
of aSSets 0' stock 0' othet equity intetests, metget 0' othetwise)) any othet PetSon
or entity a majority of whose equity and voting interests are not beneficially
owned and controlled, directly or indirectly, by Guarantor. Upon tennination of
this GUatan'ee in "co,dan" with this Seetion U(B), all ""nlingent liability of
Gu_to, in respect heteof shall ""e, and GU",",to, shall tem,;" Ii ,",Ie solely
for Guaranteed Obligations accrued prior to the date of such tennination.
IV, Rep'"entat;ons and Wananti", E"h of Gu.,an.o, and Beneficiary tep'''ents and
Wartants 'ha, (i) the exeeution, delivery and Petfonoan" by it of this Gua""'tee are within it,
cmpontte, limited liability Company 0' o'het powent, hove been duly authorized by 'lll neces,",y
cO'!>Ont'e, limited liability company 0' othet "lion, and do no. contntvene any law, o,det, deeree
0' othet government'll restriclion binding on 0' "Teeling i., and (ii) no ,",thori"lion 0' appro"l
0' othet aelion by, and no noli" to 0' filing with, any govenunent'll authority 0' regul"ory body
is 'equi'ed fo, the due execulion, delivety and Petfonoan" by it of this Gu"an'ee, excep."
may hm been ob"ined 0' made, othet than, in the C"e 0 f ojauses (iJ and (ii), con"ovenlioos 0'
I"k of authori z"i on, appm"l, noli", filing 0' o'het "lion that Would no., iodividunlly 0' in the
aggregate, imp'i, 0' delay in any m"erial respect Such Piltty' s ability '0 pe,fono its oblig"ions
hereunder.
V, Bind;ng Effect This Gua""'.ee, when executed and delivered by Beoeficiary, will
constitute a "lid 'Od leg'llly binding obligalion of GU_to" enfo"eoble against it in
aooo'dan" wi'h its tenos, except" Such enfo"ement may be limi'ed by appli"ble b'Okruptcy,
i",olvency nt o'het 'imil" laws appli"ble to "edito,,' rights genentlly and byequi"ble
principles (whether enforcement is sought in equity or at law).
VI, Noli,,,. All no.i"s, requests, dem'Ods, appro"ls, consen.s "'d othet communi"lion,
heteundetshall be in writing 'Od shall be deemed to hove been du Iy gi ven and m;oJe if seNed by
peesonal delivety Upon the party fo, whom it is intended 0' ddivered by tegistered 0' "rtified
mail, re'um te"ipt tequested, 0' if SCnt by T eleeopiet, provided th" 'he telecopy is promptly
'onfinoed by telephone 'on fino "ion thereof, to the party" 'he ;oJdte" set forth below, 0' such
othet ;oJdre" " may be design"ed in wriling heteaftet, in the same mannet, by such party,
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To Guarantor and Transferee:
Time Warner Cable Inc.
290 Harbor Drive
Stamford, CT 06902-6732
Telephone: (203) 328-0631
Telecopy: (203) 328-4094
Attention: General Counsel
To Beneficiary:
City of San Bernardino
300 No. "D" Street, San Bernardino, CA 92418
Telephone: (909) 384-5122
Telecopy: (909) 384-5138
Attention: Fred Wilson, City Administrator
VII. Integration. This Guarantee represents the agreement of Guarantor with respect to the
subject matter hereof and there are no promises or representations by Guarantor or Beneficiary
relative to the subject matter hereof other than those expressly set forth herein.
VIII. Amendments in Writing. None of the terms or provisions of this Guarantee may be
waived, amended, supplemented or otherwise modified except by a written instrument executed
by Guarantor and Beneficiary, provided that any right, power or privilege of Beneficiary arising
under this Guarantee may be waived by Beneficiary in a letter or agreement executed by
Beneficiary.
IX. Section Headings. The section headings used in this Guarantee are for convenience of
reference only and are not to affect the construction hereof or be taken into consideration in the
interpretation hereof.
X. No Assignment or Benefit to Third Parties. This Agreement shall be binding upon and
inure to the benefit of the p.arties hereto. Nothing in this Agreement, express or implied, is
mtended to confer upon anyone other than Guarantor and Beneficiary and their respective
permitted assigns, any rights or remedies under or by reason of this Guarantee.
XI. Expenses. All costs and expenses incurred in connection with this Guarantee and the
transactions contemplated hereby shall be borne by the party incurring such costs and expenses.
XII. Counterparts. This Guarantee may be executed by Guarantor and Beneficiary on
separate counterparts (including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.
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XIII. Governing Law. This guarantee shall be governed by and construed and interpreted in
accordance with the laws of the state of California without regard to principles of conflicts of
law.
IIV. Venue. The parties hereto agree that all actions or proceedings arising in connection with
this Agreement shall be tried and litigated either in the State courts located in the County of San
Bernardino, State of California or the U.S. District Court for the Central District of California.
The aforementioned choice of venue is intended by the parties to be mandatory and not
permissive in nature.
TO EFFECTUATE THIS GUARANTEE, each of the undersigned has caused this
Guarantee to be duly executed and delivered by its duly authorized officer on the date set forth
below the authorized signature.
"GUARANTOR"
TIME WARNER CABLE INe.
By:
Name:
Title:
Date:
"BENEFICIARY"
CITY OF SAN BERNARDINO
By:
Name:
Title:
Date:
Approved as to Form and Legal Content:
JAMES F. PENMAN. City Attorney
By:
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RESOLUTION NO. 2006-
RESOLUTION OF THE MAYOR AND COMMON
COUNCIL OF THE CITY OF SAN BERNARDINO
CONDITIONALLY AUTHORIZING (1) A TRANSFER OF
CONTROL OF THE CABLE TELEVISION FRANCHISE
FROM ADELPHIA COMMUNICATIONS CORPORATION
TO COMCAST CABLE HOLDINGS, LLC; (2) AN
ASSIGNMENT OF THE CABLE TELEVISION
FRANCHISE BY COMCAST CABLE HOLDINGS, LLC, TO
CAC EXCHANGE I, LLC; AND (3) A TRANSFER OF
CONTROL OF CAC EXCHANGE I, LLC FROM
COMCAST CORPORATION TO TIME WARNER CABLE
INC.
RECITALS:
A. Century - TCI California, L.P., ("Franchisee") is the authorized holder of
a franchise ("Franchise") that authorizes the construction, operation, and maintenance of a cable
television system within the City of San Bernardino ("Franchise Authority").
B. On April 20, 2005, Comcast Corporation ("Comcast") and Time Warner
NY Cable LLC ("TWNY"), an indirect subsidiary of Time Warner Cable Inc., each entered into
separate definitive agreements to acquire, collectively, substantially all of the assets of Adelphia
Communications Corporation ("Adelphia") for a total of $12.7 billion in cash (of which TWNY
will pay $9.2 billion and Comcast will pay the remaining $3.5 billion) and 16% of the common
stock of Time Warner Cable Inc.
C. In accordance with the provisions of an Exchange Agreement that was
also executed on April 20, 2005, Comcast, Time Warner Cable Inc., and their respective
subsidiaries agreed, upon consummation of the asset purchase agreements referenced above in
paragraph (B), to exchange certain cable systems owned by affiliates of Time Warner Cable Inc.
or Comcast, respectively, together with certain cable systems to be acquired in the asset purchase
transactions. In these "swap" transactions, Time Warner Cable Inc. will receive current Comcast
cable systems located in Southern California, and cable systems currently owned and operated by
Century - TCI California, L.P., including the franchised cable system serving the City.
D. On June 14,2005, the Franchise Authority received two applications
relating to proposed transfers of control of the existing Franchise held by Century - TCI
California, L.P. Each application included FCC Form 394 titled "Application for Franchise
Authority Consent to Assignment or Transfer of Control of Cable Television Franchise."
These applications are summarized as follows:
(1) FCC Form 394 related to the "Adelphia Transaction." This
application was submitted by Adelphia Communications Corporation ("Adelphia"), as the
Transferor, and by Comcast Cable Holdings, LLC, as the Transferee. Consent of the Franchise
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RESOLUTION OF THE MAYOR AND COMMON
COUNCIL OF THE CITY OF SAN BERNARDINO
CONDITIONALLY AUTHORIZING (1) A TRANSFER OF
CONTROL OF THE CABLE TELEVISION FRANCHISE
FROM ADELPHIA COMMUNICATIONS CORPORATION
TO COMCAST CABLE HOLDINGS, LLC; (2) AN
ASSIGNMENT OF THE CABLE TELEVISION
FRANCHISE BY COMCAST CABLE HOLDINGS, LLC, TO
CAC EXCHANGE I, LLC; AND (3) A TRANSFER OF
CONTROL OF CAC EXCHANGE I, LLC FROM
COMCAST CORPORATION TO TIME WARNER CABLE
INC.
Authority is requested for the acquisition by Comcast Cable Holdings, LLC of Adelphia's 75
percent ownership interest in the Franchisee, Century - TCI California, L.P. Consequently,
Comcast Cable Holdings, LLC would become the direct parent and sole owner of the Franchisee,
in accordance with the provisions of the Asset Purchase Agreement between Comcast
Corporation and Adelphia.
(2) FCC Form 394 related to the "Exchange Transaction." This
application was submitted by Century - TCI California, L.P., as the Transferor, and by Time
Wamer Cable Inc., as the Transferee. This application assumes the consummation of the
"Adelphia Transaction" described above in subsection (1) whereby Century - TCI California,
L.P. becomes a wholly-owned subsidiary of Comcast Cable Holdings, LLC. Consent of the
Franchise Authority is requested for a two-step transaction. The first step is for the ultimate
parent company, Comcast Corporation, to cause its then indirect, wholly-owned subsidiary,
Century - TCI California, L.P., to assign the Franchise to a new subsidiary wholly-owned by
Comcast Corporation, which is identified as CAC Exchange I, LLC. The second step is for
Comcast Corporation, simultaneously with the internal assignment of the Franchise, to transfer
ownership and control of CAC Exchange I, LLC to Time Warner Cable Inc. as part of the
Exchange Transaction described in the FCC Form 394.
Supplemental information concerning the Adelphia Transaction and the
Exchange Transaction was provided to the Franchise Authority by Time Warner Cable Inc. and
by Comcast Corporation on July 25,2005.
E. In accordance with Section 14.08.400 of the San Bernardino Municipal
Code, the Franchise Authority has the right to review and to approve the financial, technical, and
legal qualifications of the ultimate Transferee in connection with the proposed transfers of
control of the Franchisee and the proposed assignment of the Franchise.
F. The staff of the Franchise Authority has reviewed the documentation that
accompanied the FCC Forms 394 and, based upon the representations set forth in that
documentation, has concluded that the proposed ultimate Transferee has the requisite financial,
technical, and legal qualifications to adequately perform, or to ensure the performance of, all
obligations required of the Franchisee under the Franchise, and that CAC Exchange I, LLC, will
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RESOLUTION OF THE MAYOR AND COMMON
COUNCIL OF THE CITY OF SAN BERNARDINO
CONDITIONALL Y AUTHORIZING (1) A TRANSFER OF
CONTROL OF THE CABLE TELEVISION FRANCHISE
FROM ADELPHIA COMMUNICATIONS CORPORATION
TO COM CAST CABLE HOLDINGS, LLC; (2) AN
ASSIGNMENT OF THE CABLE TELEVISION
FRANCHISE BY COMCAST CABLE HOLDINGS, LLC, TO
CAC EXCHANGE I, LLC; AND (3) A TRANSFER OF
CONTROL OF CAC EXCHANGE I, LLC FROM
COMCAST CORPORATION TO TIME WARNER CABLE
INC.
be bound by all terms, conditions, and obligations of the Franchise as it currently exists or as it
may be modified or superseded by the parties prior to the closing of the two transactions
described above in Recital (D).
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON
COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
Section 1. In accordance with Section 14.08.400 of the San Bernardino
Municipal Code, the Franchise Authority consents to and approves the proposed assignment of
the Franchise and the proposed transfers of control of the Franchise as follows:
(a) In connection with the Adelphia Transaction described in paragraph (D) of
the Recitals, the Franchise Authority authorizes and consents to the acquisition by Comcast
Cable Holdings, LLC from Adelphia, as the ultimate parent company of Century - TCI
California, L.P., of Adelphia's 75 percent direct and indirect ownership interest in Century-TCI
California, L.P., as a consequence of which Comcast Cable Holdings, LLC, as the Transferee,
will become the direct parent company and the sole owner of Century - TCI California, L.P.,
which is the franchised cable operator.
(b) Contingent upon the closing of the Adelphia Transaction referenced above
in paragraph (a), the Franchise Authority authorizes and approves the two-step transaction
identified as the "Exchange Transaction" in paragraph (D) of the Recitals. Comcast Corporation
will cause its indirect, wholly-owned subsidiary, Century - TCI California, L.P., to assign the
Franchise to a new wholly-owned subsidiary of Comcast Corporation, which is identified as
CAC Exchange I, LLC. Simultaneously with this internal assignment of the Franchise,
ownership and control of CAC Exchange 1, LLC will be transferred by Comcast Corporation to
Time Warner Cable Inc. in accordance with the Exchange Transaction described in the second
FCC Form 394 filed with the Franchise Authority. Following consummation of the Exchange
Transaction, the Franchisee, CAC Exchange I, LLC, will be a wholly-owned subsidiary of Time
Warner NY Cable LLC, which will be controlled solely by Time Warner Cable Inc., and will do
business in the franchise service area under the tradename Time Warner Cable.
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RESOLUTION OF THE MAYOR AND COMMON
COUNCIL OF THE CITY OF SAN BERNARDINO
CONDITIONALLY AUTHORIZING (1) A TRANSFER OF
CONTROL OF THE CABLE TELEVISION FRANCHISE
FROM ADELPHIA COMMUNICATIONS CORPORATION
TO COMCAST CABLE HOLDINGS, LLC; (2) AN
ASSIGNMENT OF THE CABLE TELEVISION
FRANCHISE BY COMCAST CABLE HOLDINGS, LLC, TO
CAC EXCHANGE I, LLC; AND (3) A TRANSFER OF
CONTROL OF CAC EXCHANGE I, LLC FROM
COMCAST CORPORATION TO TIME WARNER CABLE
INC.
Section 2. Time Warner Cable Inc. has represented to the Franchise Authority
that the Exchange Transaction authorized above in Section (l)(b) is based upon the "expectation
of sequential closing" and that the two steps of the Exchange Transaction are expected "to close
contemporaneously and in direct succession." The Franchise Authority has also been informed
that the Exchange Transaction could be terminated prior to the closing of the Adelphia
Transaction, e.g., as a result of the failure to obtain FCC or applicable antitrust regulatory
approvals. In that event, the consent and approval of the Franchise Authority set forth above in
Section (1)(b) will be revoked and rescinded without further action by the Franchise Authority.
Similarly, if the Adelphia Transaction is not consummated, then this resolution will be revoked
and rescinded without further action by the Franchise Authority. In either case, new consents
and approvals, if required, must be obtained by the affected cable operators in connection with
any restructured transactions related to an assignment of the Franchise or transfers of control of
the Franchisee.
Section 3. (a) The authorization, consent and approval of the Franchise
Authority to the proposed assignment is conditioned upon compliance by the Transferor with the
following requirement:
Within 60 days after the adoption of this resolution, the Transferor and the
Transferee requesting the Franchise Authority's consent to the Adelphia Transaction will
execute and file in the office of the City Clerk a "Transfer Agreement and Guarantee of
Franchise Obligations (Adelphia Transaction)" in substantially the form attached to this
resolution as Exhibit A. The Mayor is authorized to execute that document and thereby evidence
the written consent of the Franchise Authority to the transactions therein described.
(b) The authorization, consent, and approval of the Franchise
Authority to the proposed transfer of control of CAC Exchange I, LLC to Time Warner Cable
Inc. is conditioned upon compliance with the following requirement:
Within 60 days after the adoption of this resolution, the Transferor and the
Transferee requesting the Franchise Authority's consent to the Exchange Transaction will
DHC/js [Time Warner\CAC Exchange.Reso] 4
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RESOLUTION OF THE MAYOR AND COMMON
COUNCIL OF THE CITY OF SAN BERNARDINO
CONDITIONALLY AUTHORIZING (1) A TRANSFER OF
CONTROL OF THE CABLE TELEVISION FRANCHISE
FROM ADELPHIA COMMUNICATIONS CORPORATION
TO COMCAST CABLE HOLDINGS, LLC; (2) AN
ASSIGNMENT OF THE CABLE TELEVISION
FRANCHISE BY COMCAST CABLE HOLDINGS, LLC, TO
CAC EXCHANGE I, LLC; AND (3) A TRANSFER OF
CONTROL OF CAC EXCHANGE I, LLC FROM
COMCAST CORPORATION TO TIME WARNER CABLE
INC.
execute and file in the office of the City Clerk an "Assignment and Transfer Agreement and
Guarantee of Franchise Obligations (Exchange Transaction)" in substantially the form attached
to this resolution as Exhibit B. The Mayor is authorized to execute that document and thereby
evidence the written consent of the Franchise Authority to the transactions therein described.
(c) Original or conformed copies of the written instruments evidencing
the closing and consummation of the Adelphia Transaction and of the Exchange Transaction,
respectively, must be filed in the office of the City Clerk within 60 days after the closing of each
of these transactions.
Section 4. If the conditions set forth above in paragraph (a), (b), and (d) of
Section 3 are not satisfied within the period of time specified in each of those paragraphs, then
the authorization and consent of the Franchise Authority to the proposed changes of control and
assignment as provided for in this resolution will be revoked and rescinded without further action
by the Franchise Authority, and, in such event, the FCC Form 394 applications will be denied in
all respects. In such event, the City Administrator is authorized and directed to give written
notice to all affected parties of that revocation and rescission, which will be deemed to be
without prejudice to the right of those parties to submit new FCC Forms 394 to the Franchise
Authority if required by the Franchise or local ordinance.
Section 5. The City Clerk is directed to transmit a certified copy of this
resolution to the following persons:
Mr. Roger Keating, President
Los Angeles Division
Time Warner Cable Inc.
959 South Coast Drive, Suite 300
Costa Mesa, CA 92626
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RESOLUTION OF THE MAYOR AND COMMON
COUNCIL OF THE CITY OF SAN BERNARDINO
CONDITIONALL Y AUTHORIZING (1) A TRANSFER OF
CONTROL OF THE CABLE TELEVISION FRANCHISE
FROM ADELPHIA COMMUNICATIONS CORPORATION
TO COMCAST CABLE HOLDINGS, LLCj (2) AN
ASSIGNMENT OF THE CABLE TELEVISION
FRANCHISE BY COM CAST CABLE HOLDINGS, LLC, TO
CAC EXCHANGE I, LLCj AND (3) A TRANSFER OF
CONTROL OF CAC EXCHANGE I, LLC FROM
COMCAST CORPORATION TO TIME WARNER CABLE
INC.
Brad M. Sonnenberg, Esq.
Executive Vice President,
General Counsel and Secretary
Adelphia Communications Corporation
5619 DTC Parkway
Denver, CO 80111
Ms. Sheila R. Willard
Senior Vice President, Government Affairs
Comcast Cable Holdings, LLC
1500 Market Street
Philadelphia, PA 19102-2148
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO CONDITIONALLY AUTHORIZING (1) A
TRANSFER OF CONTROL OF THE CABLE TELEVISION
FRANCHISE FROM ADELPHIA COMMUNICA TIONS
CORPORATION TO COM CAST CABLE HOLDINGS, LLC; (2) AN
ASSIGNMENT OF THE CABLE TELEVISION FRANCHISE BY
COM CAST CABLE HOLDINGS, LLC, TO CAC EXCHANGE I, LLC;
AND (3) A TRANSFER OF CONTROL OF CAC EXCHANGE I, LLC
FROM COM CAST CORPORA TlON TO TIME WARNER CABLE INC.
8 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common
9 Council of the City of San Bernardino at a
meeting thereof, held on the
10 day of
, 2006, by the following vote, to wit:
AYES
NAYS
ABSTAIN
ABSENT
11 COUNCIL MEMBERS:
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ESTRADA
LONGVILLE
MCGINNIS
DERRY
KELLEY
JOHNSON
MCCAMMACK
CITY CLERK
The foregoing Resolution is hereby approved this _ day of
,2006.
JUDITH V ALLES, Mayor
City of San Bernardino
Approved as to form and
legal content:
JAMES F. PENMAN,
City Atto1ey
II ,
By: ' , ~ 1'},---.,
j
ime Warner\CAC Exchange,Reso]
7
01/04/06
EXHIBIT A
TRANSFER AGREEMENT
AND
GUARANTEE OF FRANCHISE OBLIGATIONS
(ADELPHIA TRANSACTION)
THIS TRANSFER AGREEMENT AND GUARANTEE OF FRANCHISE
OBLIGATIONS ("Agreement") is entered into this _ day of ,2006,
between Adelphia Communications Corporation, a Delaware corporation ("Transferor"),
Comcast Cable Holdings, LLC, a Delaware limited liability company ("Transferee"), and the
City of San Bernardino, a California municipal corporation ("Franchise Authority").
RECITALS:
A. Transferor is acting on behalf of Century - TCI California, L.P., which is
the authorized holder of a franchise that authorizes the construction, operation, and maintenance
of a cable television system within the City of San Bernardino, California.
B. Transferee is acting on its own behalf and on behalf of Century - TCI
California, L.P. which, upon the closing of the Adelphia Transaction, will be a wholly-owned
subsidiary of Transferee.
C. Subject to the prior consent of the Franchise Authority, Transferor desires
to transfer full ownership and control of Century - TCI California, L.P. to Transferee, and
Transferee desires to guarantee, effective as of the closing of the Adelphia Transaction (the
"AdeJphia Closing"), the performance by Century - TCI California, L.P. of all duties, and
obligations under the cable television franchise agreement between the Franchise Authority and
Century - TCI California, L.P. ("Franchise Agreement") as it currently exists or as it may be
modified or superseded by the parties prior to the closing of the AdeJphia Transaction that is
described in Transferor's FCC Form 394.
THE PARTIES AGREE AS FOLLOWS:
1. Franchise Authority consents to the transfer of control by Transferor to
Transferee of the business entity known as Century - TCI California, L.P., which owns and
operates the cable television franchise granted by the Franchise Authority.
2. Transferee covenants and agrees with Transferor and with the Franchise
Authority to guarantee the performance by Century - TCI California, L.P. of all duties and
obligations of Century - TCI California, L.P. under the Franchise Agreement from and after the
Adelphia Closing.
3. This Agreement will become operative and enforceable upon the closing
of the Adelphia Transaction described in the FCC Form 394 as filed with the Franchise
Authority on June 14,2005.
A-I
4. Upon the closing of the Exchange Transaction described in the FCC Fonn
394 filed with the Franchise Authority on June 14, 2005, by Century - TCI California, L.P., as
Transferor, and by Time Warner Cable Inc., as Transferee, this Agreement will tenninate and
will be of no further force or effect, and this Agreement will be superseded by a similar
agreement entered into between the Franchise Authority, Comcast Cable Holdings, LLC, and
Time Warner Cable Inc.
TO EFFECTUATE THIS AGREEMENT, the parties have caused this Agreement
to be executed by their duly authorized representatives as of the date set forth below the
authorized signature.
"TRANSFEROR"
ADELPHIA COMMUNICA nONS
CORPORATION, a Delaware corporation
By:
(authorized officer)
Title:
APPROVED AS TO FORM:
Date:
Legal Counsel
"TRANSFEREE"
COMCAST CABLE HOLDINGS, LLC, a
Delaware limited liability company
By:
(Authorized Officer)
Title:
APPROVED AS TO FORM:
Date:
Legal Counsel
A-2
APPROVED AS TO FORM
AND LEGAL CONTENT:
City Attorney
ATTEST:
City Clerk
"FRANCHISE AUTHORITY"
CITY OF SAN BERNARDINO
By:
Date:
A-3
Mayor
EXHIBIT B
ASSIGNMENT AND TRANSFER AGREEMENT
AND
GUARANTEE OF FRANCHISE OBLIGATIONS
(EXCHANGE TRANSACTION)
THIS ASSIGNMENT AND TRANSFER AGREEMENT ("Agreement") is
entered into this _ day of , 2006, between Comcast Cable Holdings, LLC,
a Delaware limited liability company ("Transferor"), Time Warner Cable Inc., a Delaware
corporation ("Transferee"), and the City of San Bernardino, a California municipal corporation
("Franchise Authority").
RECITALS:
A. Transferor is acting on behalf of CAC Exchange I, LLC, which has been
authorized by the Franchise Authority to be the assignee of a franchise that authorizes the
construction, operation, and maintenance of a cable television system within the City of San
Bernardino, California.
B. Transferee is acting on its own behalf and on behalf of CAC Exchange I,
LLC which, upon the closing of the Exchange Transaction, will be an indirect majority-owned
subsidiary of Transferee and will be controlled solely by Transferee.
C. Subject to the prior consent of the Franchise Authority, Transferor desires
(I) to assign on an interim basis the ownership and control of the cable television franchise held
by Century - TCI California, L.P. to CAC Exchange I, LLC; and (2) to transfer ownership and
control of CAC Exchange I, LLC to Transferee.
D. Franchise Authority desires to ensure the continued performance of all
duties and obligations under the cable television franchise agreement between the Franchise
Authority and Century - TCI California, L.P. as it currently exists or as it may be modified or
superseded by the parties prior to the closing of the Exchange Transaction described in
Transferor's FCC Form 394.
THE PARTIES AGREE AS FOLLOWS:
I. Franchise Authority consents to Transferor's assignment of ownership and
control of the cable television franchise {"Franchise Agreement") held by Century - TCI
California, L.P. to CAC Exchange I, LLC, and to the simultaneous transfer of control by
Transferor to Transferee of Transferor's wholly-owned subsidiary, CAC Exchange I, LLC,
together with all rights, duties, and obligations specified in the Franchise Agreement, contingent
upon (i) the close of the Exchange Transaction; (ii) the assumption by Time Warner Cable Inc.
of control ofCAC Exchange I, LLC; and (iii) execution by Time Warner Cable Inc., as
guarantor, of the "Guarantee of Franchise Obligations" that is attached as Schedule 1 to this
Agreement.
B-1
2. This Agreement will become operative and enforceable upon the closing
of the Exchange Transaction described in the FCC Form 394 as filed with the Franchise
Authority on June 14,2005. Upon its operative date, this Agreement will supersede a similar
agreement entered into between the Franchise Authority, Adelphia Communications
Corporation, and Comcast Cable Holdings, LLC in connection with a transfer of control arising
out of the Adelphia Transaction.
TO EFFECTUATE THIS AGREEMENT, the parties have caused this
Assignment and Transfer Agreement to be executed by their duly authorized representatives as
of the date set forth below the authorized signature.
"TRANSFEROR"
COMCAST CABLE HOLDINGS, LLC, a
Delaware limited liability company
By:
(Authorized officer)
Title:
APPROVED AS TO FORM:
Date:
Legal Counsel
"TRANSFEREE"
TIME WARNER CABLE INC., a
Delaware corporation
By:
(Authorized Officer)
Title:
APPROVED AS TO FORM:
Date:
Legal Counsel
B-2
APPROVED AS TO FORM
AND LEGAL CONTENT:
City Attorney
ATTEST:
City Clerk
B-3
"FRANCHISE AUTHORITY"
CITY OF SAN BERNARDINO
By:
Mayor
Date:
SCHEDULE 1
to
ASSIGNMENT AND TRANSFER AGREEMENT
AND
GUARANTEE OF FRANCHISE OBLIGATIONS
GUARANTEE
GUARANTEE, dated as of , 2006, made by TIME WARNER CABLE INC., a
Delaware corporation ("Guarantor"), in favor of the City of San Bernardino, California,
("Beneficiary").
For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and to induce Beneficiary to timely consent to the transfer of control of the cable
television franchise issued by Beneficiary and currently held by Century- TCI California, L.P.
(the "Franchise") to Time Warner Cable Inc. ("Transferee") in accordance with the Federal
Communications Commission Forms 394 filed by Transferee, Guarantor agrees as follows:
I. Interpretive Provisions.
A. The words "hereof," "herein" and "hereunder" and words of similar import, when
used in this Guarantee, shall refer to this Guarantee as a whole and not to any
particular provision of this Guarantee, and section and paragraph references are to
this Guarantee unless otherwise specified.
B. The meanings given to terms defined herein shall be equally applicable to both
the singular and plural forms of such terms.
II. Guarantee.
A. Effective upon the close of the Exchange Agreement, Guarantor unconditionally
and irrevocably guarantees to Beneficiary the timely and complete performance of
all Transferee obligations under the Franchise (the "Guaranteed Obligations").
The Guarantee is an irrevocable, absolute, continuing guarantee of payment and
performance, and not a guarantee of collection. If Transferee fails to pay any of
its monetary Guaranteed Obligations in full when due in accordance with the
terms of the Franchise, Guarantor will promptly pay the same to Beneficiary or
procure payment of same to Beneficiary. Anything herein to the contrary
notwithstanding, Guarantor shall be entitled to assert as a defense hereunder any
defense that is or would be available to Transferee under the Franchise or
otherwise.
B-4
B. This Guarantee shall remain in full force and effect until the earliest to occur of:
(i) performance in full of all Guaranteed Obligations at a time when no additional
Guaranteed Obligations remain outstanding or will accrue to Transferee under the
Franchise; and (ii) subject to any required consent of the Beneficiary, any direct
or indirect transfer of the Franchise from Transferee to (or direct or indirect
acquisition of Transferee or any successor thereto by (whether pursuant to a sale
of assets or stock or other equity interests, merger or otherwise)) any other person
or entity a majority of whose equity and voting interests are not beneficially
owned and controlled, directly or indirectly, by Guarantor. Upon termination of
this Guarantee in accordance with this Section II(B), all contingent liability of
Guarantor in respect hereof shall cease, and Guarantor shall remain liable solely
for Guaranteed Obligations accrued prior to the date of such termination.
III. Waiver. Guarantor waives any and all notice of the creation, renewal, extension or
accrual of any of the Guaranteed Obligations and notice of or proof of reliance by Beneficiary
upon this Guarantee or acceptance of this Guarantee. Guarantor waives diligence, presentment,
protest and demand for payment to Transferee or Guarantor with respect to the Guaranteed
Obligations; provided, however, that Guarantor shall be furnished with a copy of any notice of or
relating to default under the Franchise to which Transferee is entitled or which is served upon
Transferee at the same time such notice is sent to or served upon Transferee.
IV. Representations and Warranties. Each of Guarantor and Beneficiary represents and
warrants that: (i) the execution, delivery and performance by it of this Guarantee are within its
corporate, limited liability company or other powers, have been duly authorized by all necessary
corporate, limited liability company or other action, and do not contravene any law, order, decree
or other governmental restriction binding on or affecting it; and (ii) no authorization or approval
or other action by, and no notice to or filing with, any governmental authority or regulatory body
is required for the due execution, delivery and performance by it of this Guarantee, except as
may have been obtained or made, other than, in the case of clauses (i) and (ii), contraventions or
lack of authorization, approval, notice, filing or other action that would not, individually or in the
aggregate, impair or delay in any material respect such party's ability to perform its obligations
hereunder.
V. Binding Effect. This Guarantee, when executed and delivered by Beneficiary, will
constitute a valid and legally binding obligation of Guarantor, enforceable against it in
accordance with its terms, except as such enforcement may be limited by applicable bankruptcy,
insolvency or other similar laws applicable to creditors' rights generally and by equitable
principles (whether enforcement is sought in equity or at law).
VI. Notices. All notices, requests, demands, approvals, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly given and made if served by
personal delivery upon the party for whom it is intended or delivered by registered or certified
mail, return receipt requested, or if sent by Telecopier, provided that the telecopy is promptly
confirmed by telephone confirmation thereof, to the party at the address set forth below, or such
other address as may be designated in writing hereafter, in the same manner, by such party:
B-5
To Guarantor and Transferee:
Time Warner Cable Inc.
290 Harbor Drive
Stamford, CT 06902-6732
Telephone: (203) 328-0631
Telecopy: (203) 328-4094
Attention: General Counsel
To Beneficiary:
City of San Bernardino
300 No. "D" Street, San Bernardino, CA 92418
Telephone: (909) 384-5122
Telecopy: (909) 384-5138
Attention: Fred Wilson, City Administrator
VII. Integration. This Guarantee represents the agreement of Guarantor with respect to the
subject matter hereof and there are no promises or representations by Guarantor or Beneficiary
relative to the subject matter hereof other than those expressly set forth herein.
VIII. Amendments in Writing. None of the terms or provisions of this Guarantee may be
waived, amended, supplemented or otherwise modified except by a written instrument executed
by Guarantor and Beneficiary, provided that any right, power or privilege of Beneficiary arising
under this Guarantee may be waived by Beneficiary in a letter or agreement executed by
Beneficiary.
IX. Section Headings. The section headings used in this Guarantee are for convenience of
reference only and are not to affect the construction hereof or be taken into consideration in the
interpretation hereof.
X. No Assignment or Benefit to Third Parties. This Agreement shall be binding upon and
inure to the benefit of the parties hereto. Nothing in this Agreement, express or implied, is
intended to confer upon anyone other than Guarantor and Beneficiary and their respective
permitted assigns, any rights or remedies under or by reason of this Guarantee.
XI. Expenses. All costs and expenses incurred in connection with this Guarantee and the
transactions contemplated hereby shall be borne by the party incurring such costs and expenses.
XII. Counterparts. This Guarantee may be executed by Guarantor and Beneficiary on
separate counterparts (including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.
B-6
XIII. Governing Law. This guarantee shall be governed by and construed and interpreted in
accordance with the laws of the state of California without regard to principles of conflicts of
law.
XIV. Venue. The parties hereto agree that all actions or proceedings arising in connection
with this Agreement shall be tried and litigated either in the State courts located in the County of
San Bernardino, State of California or the U.S. District Court for the Central District of
California. The aforementioned choice of venue is intended by the parties to be mandatory and
not permissive in nature.
TO EFFECTUATE THIS GUARANTEE, each of the undersigned has caused this
Guarantee to be duly executed and delivered by its duly authorized officer on the date set forth
below the authorized signature.
"GUARANTOR"
TIME WARNER CABLE INe.
By:
Name:
Title:
Date:
"BENEFICIARY"
CITY OF SAN BERNARDINO:
By:
Name:
Title:
Date:
Approved as to Form and Legal Content:
JAMES F. PENMAN, City Attorney
By:
B-7
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date AId): ( fq ( ob
Vote: Ayes ~ Nays
Change to motion to amend original documents 0
Item # 10 A
Abstain
Resolution #
;>'0010 r~
Absent~1
Companion Resolutions
days /
Null/Void After:
Resolution # On Attachments: 0
Note on Resolution of attachment stored separately: 0
PUBLISH 0
POST 0
RECORD W/COUNTY 0
By:
\rLOfC/o
Date of Mayor's Signature: k \ yOlo
Date of ClerklCDC Signature: J r \ 1'-4) b
Reso. Log Updated: 0:
Seal Impressed: ~/~
Reso. # on Staff Report r:J
Date Sent to Mayor:
Date Memo/Letter Sent for Signature:
I" Reminder Letter Sent:
)1 )--"0 b
Date Returned:
Not Returned: 0
2"d Reminder Letter Scnt:
Request for Council Action & Staff Report Attached:
Updated Prior Resolutions (Other Than Below):
Updated CITY Personnel Folders (6413, 6429, 6433,10584, 10585, 12634):
Updated CDC Personnel Folders (5557):
Updated Traffic Folders (3985, 8234, 655, 92-389):
Yes "
No_~~By_
-'
Yes
No-/13y
N07BY-
No ~y__
No By_
Yes
Yes
Yes
Copies Distributed to:
Animal Control ~) EDA 0 Information Services 0
City Administrator Facilities 0 Parks & Recreation 0
City Attorney Finance 0 Police Department 0
Code Compliance 0 F ire Department 0 Public Services 0
Development Services 0 Human Resources 0 Water Department 0
Revised 12/18/03
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
M~<ing D." (D." A1;'" I "I/o (,
Vote: Ayes Nays
Change to motion to amend original documents 0
Item # J 0 0>
~tl6'- 3
Resolution #
Abstain
Companion Resolutions
Null/Void After:
days/
Absent -fr 7
PUBLISH 0
By:
Note on Resolution of attachment stored separately: 0
Resolution # On Attachments: 0
POST 0
RECORD W/COUNTY 0
Date Sent to Mayor: \" l 0 roh .
Date of Mayor's Signature: Ji\ }-,C ~
Date ofClerklCDC Signature: 4-L\Y~-O 11
Date Memo/Letter Sent for Signature:
I" Reminder Letter Sent:
Date Returned:
2nd Reminder Letter Sent:
Not Returned: 0
Request for Council Action & Staff Report Attached:
Updated Prior Resolutions (Other Than Below):
Updated CITY Personnel Folders (6413, 6429,6433,10584, 10585, 12634):
Updated CDC Personnel Folders (5557):
Updated Traffic Folders (3985, 8234, 655, 92-389):
Reso. Log Updated: {]
Seal Impressed: I2l /'
Reso. # on Staff Report 0
,;'
Yes
Yes
Yes
Yes
Yes
No By_
No V' By_
~
No By_
No~' I:lY_
No ---!"By _
Copies Distributed to:
Animal Control 0 EDA 0 Information Services 0
City Administrator 0 Facilities 0 Parks & Recreation 0
City Attorney 0 Finance 0 Police Department 0
Code Compliance 0 Fire Department 0 Public Services 0
Development Services 0 Human Resources 0 Water Department 0
Others:
Notes:
Ready to File: -V
1.1.,/1/-:
Date';' t t,:,['
Revised 12/18/03
OFFICE OF TIlE CITY CLERK
RACHEL G. CLARK, C.M.C. - CITY CLERK
300 North "D" Street. San Bernardino. CA 92418-0001
909.384.5002. Fax: 909.384.5158
www.sbcity.org
'"
February 2, 2006
Tirne Warner Cable
AUn: Hurna Khan
290 Harbor Drive
Stanford CT 06902
Dear Huma:
At the Mayor and Cornrnon Council rneeting of January 9, 2006, the City of San Bernardino
adopted Resolution No. 2006-2 - Resolution conditionally authorizing the assignment of a cable
television franchise by Adelphia Cablevision of Inland Empire. LLC to Time Warner NY Cable
LLC. an indirect subsidiary of Time Warner Cable Inc; and Resolution No. 2006-3 - Resolution
conditionally authorizing (1) a transfer of control of the Cable Television Franchise from
Adelphia Communications Corporation to Com cast Cable Holdings. LLC; (2) an Assignment of
the Cable Television Franchise by Comcast Cable Holdings, LLC. to CAC Exchange I. LLC; and
(3) a transfer of control of CAC Exchange I. LLC from Comcast Corporation to Time Warner
Cable Inc.
Enclosed are one (I) original agreernent and two (2) duplicate original agreements for each
resolution, to be executed. Please sign in the appropriate locations and return the original
agreements and one (I) duplicate original agreement to the City Clerk's Office, AUn: Eileen
Gornez, P.O. Box 1318, San Bernardino, CA 92402, as soon as possible. Please keep one fully
executed duplicate original agreement for each resolution for your records.
Please be advised that the resolution and agreement will be null and void if not executed
within sixty (60) days or by March 9,2006.
If you have any questions, please do not hesitate to contact rne at (909)384-5002.
~ / ~-
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Eileen Gomez
Senior Secretary
Enclosure
CITY OF SAN BERNARDINO
ADOPTED SHARED VALVES: Integrity. Accountability. Respect for Human Dignity. Honesty
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OFFICE OF TIlE CITY CLERK
RACHEL G. CLARK, CoM.C. - CITY CLERK
300 North "D" Street. San Bernardino. CA92418-0001
909.384.5002. Fax: 909.384.5158
www.sbcity.org
'"
February 3, 2006
Ms. Sheila R. Willard
Senior Vice President, Governrnent Affairs
Comcast Cable Holdings, LLC
1500 Market Street
Philadelphia, PA 19102-2148
Dear Ms. Willard:
Enclosed please find one fully executed certified copy of Resolution No. 2006-3, conditionally
authorizing (I) a transfer of control of the cable television franchise frorn Adelphia
Communications Corporation to Comcast Cable Holdings, LLC; (2) an assignment of the cable
television franchise by Comcast Cable Holdings, LLC, to CAC Exchange I, LLC; and (3) a
transfer of control of CAC Exchange I, LLC from Comcast Corporation to Time Wamer Cable
Inc.
As indicated in Section 5, page 5 of Resolution No. 2006-3, "The City Clerk is directed to
transmit a certified copy of this resolution to the following persons:.... ..."
If you have any questions, please do not hesitate to call rne at (909)384-5002.
, Si:~erelY, ~ <.
~~~;;;"c: c:5.
Enclosure
CITY OF SAN BERNARDINO
ADOPTED SHARED VALUES: Integrity. Accountability. Respect for Human Dignity. Honesty
OFFICE OF TIlE CITY CLERK
RACHEL G. CLARK, C.M.C. - CITY CLERK
300 North "D" Street. San Bernardino. CA 92418-0001
909.384.5002. Fax: 909.384.5158
www.sbcity.org
'"
February 3, 2006
Mr. Brad M. Sonnenberg, Esq.
Executive Vice President,
General Counsel and Secretary
Adelphia Communications Corporation
5619 DTC Parkway
Denver, CO 80111
Dear Mr. Sonnenberg:
Enclosed please find one fully executed certified copy of Resolution No. 2006-3, conditionally
authorizing (I) a transfer of control of the cable television franchise frorn Adelphia
Communications Corporation to Corncast Cable Holdings, LLC; (2) an assignment of the cable
television franchise by Comcast Cable Holdings, LLC, to CAC Exchange I, LLC; and (3) a
transfer of control of CAC Exchange I, LLC from Comcast Corporation to Tirne Warner Cable
Inc.
As indicated in Section 5, page 5 of Resolution No. 2006-3, "The City Clerk is directed to
transmit a certified copy of this resolution to the following persons:......."
If you have any questions, please do not hesitate to call me at (909)384-5002.
Sincerely:....~4
~-- . ___/2' /
---2:/ ~?'-~
Eileen Gomez
Senior Secretary .
Enclosure
CITY OF SAN BERNARDINO
ADOPTED SHARED VALVES: Integrity. Accountability. Respect for Human Dignity. Honesty
OFFICE OF TIlE CITY CLERK
RACHEL G. CLARK, C.M.C. - CITY CLERK
300 North "D" Street. San Bernardino. CA 92418-0001
909.384.5002. Pax: 909.384.5158
www.sbcity.org
'"
February 3, 2006
Mr. Roger Keating, President
Los Angeles Division
Time Warner Cable Inc.
959 South Coast Drive, Suite 300
Costa Mesa, CA 92626
Dear Mr. Keating:
Enclosed please find one fully executed certified copy of Resolution No. 2006-3, conditionally
authorizing (1) a transfer of control of the cable television franchise from Adelphia
Communications Corporation to Comcast Cable Holdings, LLC; (2) an assignment of the cable
television franchise by Comcast Cable Holdings, LLC, to CAC Exchange I, LLC; and (3) a
transfer of control of CAC Exchange I, LLC from Comcast Corporation to Tirne Warner Cable
Inc.
As indicated in Section 5, page 5 of Resolution No. 2006-3, "The City Clerk is directed to
transmit a certified copy of this resolution to the following persons:......."
If you have any questions, please do not hesitate to call me at (909)384-5002.
Sincerely, A
~& 1-,
'- ...,....~~....,
. . ,/.,
-- _/ /'.7.
Eileen Gomez
Senior Secretary
Enclosure
CITY OF SAN BERNARDINO
ADOPTED SHARED VALUES: Integrity. Accountability. Respect for Human Dignity. Honesty