HomeMy WebLinkAbout2006-003
RESOLUTION NO. 2006- 3
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 COM CAST CABLE HOLDINGS, LLC; (2) AN
ASSIGNMENT OF THE CABLE TELEVISION
FRANCHISE BY COMCAST 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.
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
Warner 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
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.
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 I, 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 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.
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 (l)(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
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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 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.
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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2006-3
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.
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 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 COM CAST CORPORATION 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 join t r e g1l1 R r
meeting thereof, held on the 9th
10 day of January
, 2006, by the following vote, to wit:
ABSTAIN
ABSENT
11 COUNCIL MEMBERS:
The foregoing Resolution is hereby approved this I
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ESTRADA
LONGVILLE
MCGINNIS
DERRY
KELLEY
JOHNSON
MCCAMMACK
AYES
NAYS
x
x
x
x
x
x
x
~!:J.~
CITY CLERK
January
,2006.
\
,,~~
ITH V ALLES, Mayor
of San Bernardino
Approved as to form and
legal content:
JAMES F. PENMAN,
City Atto ey
By:
ime Warner\CAC Exchange.Reso] 7
01/04/06
2006-3
ORIGINAL
TRANSFER AGREEMENT
AND
GUARANTEE OF FRANCHISE OBLIGATIONS
(ADELPHIA TRANSACTION)
THIS TRANSFER AGREEMENT A~ GUARA~ OF FRANCHISE
OBLIGATIONS ("Agreement") is entered into this ~ day of to--'v-f ,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
"Adelphia 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 Adelphia 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.
200~-3
4. Upon the closing of the Exchange Transaction described in the FCC Form
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 terminate 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"
ADELPHlA COMMUNICA nONS
C3iRATION. a ~liliJ~iO"
By: /1~ .
\ (authorIzed offIcer)
Title:~ \l~H~\~~, LMo/!~ltPDU('(
VED AS TO FORM:
Date:
'2/ f6!rzCJ-CXP
r
Legal Counsel
"TRANSFEREE"
COMCAST CABLE HOLDINGS, LLC, a
Delaware limited liability company
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Title: 5e."v'-'l"" '\\,,',;>." j., ,(-c "'''-' ,,"'<A" ~~<...~"
APPROVED AS TO FORM:
Date: \;'0'-""'0,,\ I ,"Z.l:Cf,..
\
Legal Counsel
. 2006:"'3
"FRANCHISE AUTHORITY"
APPROVED AS TO FORM
AND LEGAL C NTENT:
BERNARDINO
ATTEST:
Q.~~-{
City'elerk
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2006-3
ASSIGNMENT AND TRANSFER AGREEMENT
AND
GUARANTEE OF FRANCHISE OBLIGATIONS
(EXCHANGE TRANSACTION)
THiS ASSIGN ENT AND TRANSFER AGREEMENT ("Agreement") is
entered into this ~ day of ~. , 2006, between Comcast Cable Holdings, LLC,
a Delaware limited liability company (" ransferor"), 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
(1) 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:
1. 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 of CAe 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.
2006':"3
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)
S",~.\"- \<....".o.\~,.;-
Title: s.<""Q,-\.l",~ ",..,.~ < ,\. \C"~<,,,..,,,,,.J. (l..\~c.~~
APPROVED AS TO FORM:
Date: ~ ,,,-,,,c,, .... I, <.cc <.c
.
Legal Counsel
"TRANSFEREE"
~PROVED AS TO FORM:
-tQtN~jLtL^ Ok,JJ~
Legal Counsel
TIME WARNER CABLE INC., a
Delaware corporation
B~~l
(Authorized Officer)
Title:S ~~ I \ VVv<~~lL4-s:
./
Date: ;).. ~ &, - 0 b
.. 2006-3
APPROVED AS TO FORM
A&GALCON7~
City Ar~
l.) C' ') J~
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"FRANCHISE AUTHORITY"
,
2006'-3
SCHEDULE 1
to
ASSIGNMENT AND TRANSFER AGREEMENT
AND
GUARANTEE OF FRANCHISE OBLIGATIONS
GUARANTEE
GUARANTEE, dated as of ,,*~\u"'1" ( , 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.
2006-J.
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 Beneiiciary
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:
. '2006':'3
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.
.2006':3
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.
B~~~
Name: ~ . .
TiU" -. . S
Date: !3.~ Co-Ok,
"BENEFICIARY"
CITY OF SAN BERNARDINO:
Approved as to Form and Legal Content:
JAMES F. PENMAN, City Attorney
BY;[)~'~