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HomeMy WebLinkAboutCentury Mendocino Cable Television, Inc. DBA Adelphia Cable Communications 2006-03-01 . 03 /odfv ASSIGNMENT AND ASSUMPTION AGREEMENT AND GUARANTEE OF ASSIGNEE'S OBLIGATIONS (CABLE TELEVISION FRANCHISE AGREEMENT) THIS ASSIGNMENT AND S�S SUMPTION AGREEMENT�� ("AgreemenY') is entered into this � day of li.�o-�,(,c 200�,6in Ukiah, California, between Century Mendocino Cable Television, Inc. d/b/a Adelphia Cable Communications ("Assignor"), Cable Holdco Exchange V, LLC ("Assignee"), and the City of Ukiah, 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 Ukiah, 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 15, 2005, and supplementary and other related documents (the "Closing"), all rights, duties, and obligations under the cable television franchise agreement between the Franchise Authority and the Assignor("Franchise AgreemenY') as it currently exists, or as it may be modified or superseded by the parties prior to the Closing. In the main body of the City of Ukiah Resolution No. 2006-33, of which this exhibit is a part (the "Franchise Assignment Consent Resolution"), the Franchise Authority has enumerated the terms upon which the Franchise Authority conditions its consent to the Franchise Assignment. 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, including all duties and obligations arising prior to the Closing, except as may be limited by Assignor's rights under the pending Adelphia Communications Corporation ("Adelphia") baukruptcy proceeding pursuant to the Bankruptcy Code. 3. Franchise Authority consents to the assignment and transfer by Assignar to Assignee of all rights, duties, and obligations specified in the Franchise Agreement, contingent upon the timely satisfaction of all Assignor, Assignee, and affiliated entities' obligations described in this "Franchise Assignment Consent Resolution," including timely execution by Comcast Cable Communications Holdings, Inc., as guazantor, of the "Guazantee of Assignee's Obligations" that is attached as 1 Schedule I to this Agreement. Within sixty(60) days after the adoption of this resolution,/ the Franchisee and the Transferee shall file in the office of the City Clerk, in fully executed form, both this "Assignment and Assumption Agreement," as well as the "Guarantee of Assignee's Obligations," in substantially the form attached to the Resolution as Exhibit A 4. This Agreement will become operative and enforceable upon the J closing of the asset purchase transaction described in the FCC Form 394 as filed with the Franchise Authority on June 15, 2005. 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" CENTURY MENDOCINO CABLE TELEVISION, INC. D/B/A ADELPHIA CABLE COMM�TNICAT NS � By: ( orized officer) Thomas J. Larsen Tltle: Re ionA YKe PrcsideM-Law 8 PuWic Pali�y APPROVED AS Td FORM: Date: � '1 o�c S,��r- °pB �i,4PCS�_L�v� ¢?�d/c ��ic y Legal Counsel � "ASSIGNEE" COMCAST OF INDIANA/MICHIGAN/TEXAS, � i GP, LLC, G�,..��� Pa..-kK-� o� Ar\��S"''/� Ca,•tic..s+ c� s.a,a...�� (N.e�..,o..�ru.a.s. Le �`* As Parent of Assignee u on Closing: qC _ - .`� By: /��*'�'�-►+ V�-�S�u�-` �2 pE � (Authorized Officer) �� J ^� 2od� Title:/,,n. V;� h�r��e+�/— APPROVED AS TO FORM: Date: 3 �'� fa b Legal Counsel 2 "FRANCHISE AUTHORITY" CITY OF UKIAH � APPROVED AS TO FORM: By:� i'�/ � Marl s iku, Mayor- • Date: �/.5�0 �o Davi . apport, City Attorney � � ATTEST: _,/7l��l�l�� �i,t,l� Marie Ulvila, City Clerk 3 SCHEDULEI to ASSIGNMENT AND ASSUMPTION AGREEMENT AND GUARANTE� OF ASSIGNEE'S OBLIGATIONS GUARANTEE GUARANTEE, dated as of �1�1D , 20(�,�made by COMCAST CABLE COMMiJNICATIONS HOLDINGS, INC., a Delaware corporation ("Guarantor"), in favor of the City of Ukiah, California, (`Beneficiary"). I'ar good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and to induce Beneficiary to tirnely consent to the transfer of the cable television franchise issued by Beneficiary and currently held by Century Mendocino Cable Television, Inc. (the "Franchise") to Cable Holdco Exchange V, LLC ("Transferee"), a subsidiary of Guarantor, in accordance with the Federal Communications Commission Form 394 filed by Transferee, Guazantor agrees as follows: Interpretive Provisions. A. The words "hereof," "herein" and "hereunder" and words of similaz 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 Guazantee 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. Guarantee. �+� k��� �'°^�""�``'°^�� �c���a�+s ,,.esa.s� , A. Effective upon the close of the asset purchase transactionn Guarantor unconditionally and irrevocably guarantees to Beneficiary the timely and complete performance of all Transferee obligations under the Franchise (the "Guaranteed Obligations"). The Guarantee constitutes an irrevocable, absolute, continuing guarantee of payment and performance. If Transferee fails to pay any of its monetary Guaranteed Obligations in full when due in accordance with the terms of the Franchise, Guarantor shall 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. A-4 S,\u�resos05\ComcastGuarantee DRAFT 10/21/OS 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. Waiver. Guazantor waives any and all notice of the creation, renewal, extension or accrual of any of the Guazanteed 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. This section does not effect any notice provision in either the Franchise Agreement or any City of Ukiah Ordinance. Representations and Warranties. Each of Guazantor 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. 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 baukruptcy, insolvency or other similar laws applicable to creditors' rights generally and by equitable principles (whether enforcement is sought in equity or at law). 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: A-5 S,\utresos05\Comcas[Gnaran[ee D2AFT 10/21/OS To Guarantor and Transferee: Comcast—Legal Department 1500 Market Street Philadelphia, PA 19102 Telephone: (215) 665-1700 Telecopy: (215) 981-7790 To Beneficiary: City Manager City of Ukiah Ukiah Civic Center 300 Seminary Ave. Ukiah, California 95482 Telephone: (707) 463-6210 Telecopy: (707) 463- Integration. This Guazantee 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. Amendments in Writing. None of the terms or provisions of this Guarantee may be waived, amended, supplemented or otherwise modified except by a written instr•ument executed by Guarantor and Beneficiary, provided that any right, power or privilege of Beneficiary arising under this Guarantee may be waived by Beneficiazy in a letter or agreement executed by Beneficiary. Section Headings. The section headings used in this Guarantee are for convenience of reference only and are not to affect the conshuction hereof or be taken into consideration in the interpretation hereof. 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 perinitted assigns, any rights or remedies under or by reason of this Guarantee. 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. 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. A-6 S;\utresos05\ComcastGuarantee DRAFT 10/21/OS Governing Law. This Guarantee shall be governed by and construed and interpreted in accordance with the laws of tlie State of California without regard to principles of conflicts of law. Any legal action or proceeding concerning this Guarantee shall be filed and prosecuted in the appropriate California state court in the Mendocino County, California. Each party hereto irrevocably consents to the personal jurisdiction of that court. The parties each hereby expressly waive the benefit of any provision of federal or state law or judicial decision providing for the filing, removal, or change of venue to any other court or jurisdiction, including, without implied limitation, federal district court, due to any diversity of citizenship between the parties, due to the fact that either or both of the parties is a party to such action or proceeding or due to the fact that a federal question or federal right is involved or alleged to be involved. Without limiting the generality of the foregoing, the parties each specifically waive any rights provided to it pursuant to California Code of Civil Procedure Section 394. The parties acknowledges that the provisions of this paragraph are material consideration to the parties' entry into this Guarantee, in that the parties will avoid the potential cost, expense and inconvenience of litigating in a distant forum. Waiver of Jury Trial. Each party hereto hereby irrevocably and unconditionally waives trial by jury in any legal action or proceeding relating to this guarantee and for any counterclaim therein. Attorneys Fees. In the event that any action or proceeding regazding any term of this Guarantee is commenced, the prevailing party in such action or proceeding, in addition to all other relief to which it may be entitled, shall be entitled to recover from the other party the prevailing party's costs of suit and reasonable attorneys' fees. The prevailing party shall be as determined by the court in accordance with California Code of Civil Procedure Section 1032. The attorney's costs and expert fees recoverable pursuant to this section include, without limitation, attorney's costs and expert fees incurred on appeal and those incurred in enforcing any judgment rendered. Attorney's costs and fees may be recovered as an element of costs in the underlying action or proceeding or in a sepazate recovery action. A-7 S,\utresos05\ComcastGuarantee DRAFT 10/21/OS , .- n TO EPFECTUATE THIS GUARANTEE, each of the undersigned has caused this Guazantee to be duly executed and delivered by its duly authorized officer on the date set forth below the authorized signature. "GUARANTOR" COMCAST CABLE COMI� iJNICATIONS HOLDING, INC., a Delaware corporation ✓ �ooZ By: . v C`� �14 (Authorized Officer) � Name: Tlie�u A--Y' tt.._ NI-�tfp-N � � Title: Sit.. � �-' Ph�t r>i�� � Date: 3 /ro ��`6 ��j. � �i�iueu� APPROVED AS TO FORM: "BENEFICIARY" CITY OF UKIAH By: Mark Ashiku, Mayor APPROVED AS TO FORM BY: David J. Rapport, City Attorney ATT�ST: Marie Ulvila, City Clerk A-8 S;\uUesos05\ComcastGuarantee DRAFT 10/2l/OS SCHEDULEI to ASSIGNMENT AND ASSUMPTION AGREEMENT AND GUARANTEE OF ASSIGNEE'S OBLIGATIONS GUARANTEE GUARANTEE, dated as of � ra , 200�� made by COMCAST CABLE COMMLJNICATIONS HOLDINGS, INC., a Delawaze corporation ("Guarantor"), in favor of the City of Ukiah, California, ("Beneficiary"). For good and valuable consideration, the receipt and sufficiency of which aze hereby acknowledged, and to induce Beneficiary to timely consent to the transfer of the cable television franchise issued by Beneficiary and currently held by Century Mendocino Cable Television, Inc. (the "Franchise") to Cable Holdco Exchange V, LLC ("Transferee"), a subsidiary of Guarantor, in accordance with the Federal Communications Commission Form 394 filed by Transferee, Guarantor agrees as follows: Interpretive Provisions. A. The words "hereof," "herein" and "hereunder" and words of similar import, when used in this Guazantee, shall refer to this Guarantee as a whole and not to any particular provision of this Guazantee, and section and pazagraph references aze to this Guazantee unless otherwise specified. B. The meanings given to terms defined herein shall be equally applicable to both the singulaz and plural forms of such terms. Guarantee. a.a s,,.,��,- C.-���«<<^'N*« .b ca�.�k� 5.,6_.a.P.-�� A. Effective upon the close of the asset purchase transactionA Guarantor unconditionally and irrevocably guarantees to Beneficiary the timely and complete performance of all Transferee obligations under the Franchise (the "Guaranteed Obligations"). The Guarantee constitutes an inevocable, absolute, continuing guarantee of payment and performance. If Transferee fails to pay any of its monetary Guazanteed Obligations in full when due in accordance with the terms of the Franchise, Guarantor shall 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. A-4 S;\uUesos05\Comcas[Guaran[ee DRAPT 10/21/OS . B. This Guarantee shall remain in full force and effect until the earliest to occur o£ (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 Guarantar sha11 remain liable solely for Guaranteed Obligations accrued prior to the date of such termination. 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. Guazantor waives diligence, presentment, protest and demand for payment to Transferee or Guarantor with respect to the Guazanteed 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. This section does not effect any notice provision in either the Franchise Agreement or any City of Ukiah Ordinance. 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. 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). Notices. All notices, requests, demands, approvals, consents and other communications hereunder shall be in writing and sha11 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 prompfly 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: A-5 S;\u�resos05\Comcas[Guarantee DRAFT 10/21/OS , To Guarantor and Transferee: Comcast—Legal Department 1500 Market Street Philadelphia, PA 19102 Telephone: (215) 665-1700 Telecopy: (215) 981-7790 To Beneficiary: City Manager City of Ukiah Ukiah Civic Center 300 Seminary Ave. Ukiah, California 95482 Telephone: (707) 463-6210 Telecopy: (707) 463- 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. 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 Beneficiazy arising under this Guazantee may be waived by Beneficiary in a letter ar agreement executed by Beneficiary. Section Headings. The section headings used in this Guazantee aze for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof. 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. 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. Counterparts. This Guarantee may be executed by Guarantor and Beneficiary on sepazate counterparts (including by facsimile transmission), and all of said counterparts taken together shall be deemed to constitute one and the same instrument. A-6 S,\u�tesos05\ComcastGuarantee DRAFT 10/21/OS ' . 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. Any legal action or proceeding concerning this Guarantee shall be filed and prosecuted in the appropriate California state court in the Mendocino County, California. Each party hereto irrevocably consents to the personaljurisdiction ofthat court. The parties each hereby expressly waive the benefit of any provision of federal or state law or judicial decision providing for the filing, removal, or change of venue to any other court or jurisdiction, including, without implied limitation, federal district court, due to any diversity of citizenship between the parties, due to the fact that either or both of the parties is a party to such action or proceeding or due to the fact that a federal question or federal right is involved or alleged to be involved. Without limiting the generality of the foregoing, the parties each specifically waive any rights provided to it pursuant to Califarnia Code of Civil Procedure Section 394. The parties acknowledges that the provisions of this paragraph are material consideration to the parties' entry into this Guarantee, in that the parties will avoid the potential cost, expense and inconvenience of litigating in a distant forum. Waiver of Jury Trial. Each party hereto hereby inevocably and unconditionally waives trial by jury in any legal action or proceeding relating to this guarantee and for any counterclaim therein. Attorneys Fees. In the event that any action or proceeding regarding any term of this Guarantee is commenced, the prevailing party in such action or proceeding, in addition to all other relief to which it may be entitled, shall be entitled to recover from the other party the prevailing party's costs of suit and reasonable attorneys' fees. The prevailing party shall be as determined by the court in accordance with California Code of Civil Procedure Section 1032. The attorney's costs and expert fees recoverable pursuant to this section include, without limitation, attorney's costs and expert fees incurred on appeal and those incurred in enforcing any judgment rendered. Attorney's costs and fees may be recovered as an element of costs in the underlying action or proceeding or in a separate recovery action. A-7 S;\u\resos05\Comcas[Guarantee DRAFT 10/2l/OS , + 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" COMCAST CABLE COM IJNICATIONS HOLDING, INC., a Delaware corporation By: ��-�-H /���V �-w 1002 � (Authorized Officer) � �v �{ Namelf•fontiR3 R—. /J.(-?�f'bP1 � � Title: 11�.-. v� �c� �-F C���+� ,� Date: 3 /r 0 �eL R,_ �� _� APPROVED AS TO FORM: "BENEFICIARY" CITY OF UKIAH .�~�'j � %�' gy, ; / c/C ' 1Cfiark Ashiku� a or APPROVED AS TO FORM , BY: Davi . apport, City Attorney ATTEST: � ,� �^��� Marie Ulvila, City Clerk A-8 S;\u\resos05\ComcastGuarantee DRAFT 10/21/OS