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Resolution No. 5964149 RESOLUTION NO. 5964 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CYPRESS, CALIFORNIA CONSENTING TO THE TRANSFER OF A FRANCHISE FOR CABLE TELEVISION WHEREAS, the City Council of the City of Cypress, California granted a franchise to a predecessor of Comcast of Cypress, LLC ( "Comcast of Cypress "), under the ownership and control of Comcast Corporation ( "Comcast "), to construct, improve, operate and maintain a cable television system within the City (the "System ") pursuant to a Franchise Agreement dated May 29, 1984 ( "Franchise Agreement ") and Chapter 6 of the Municipal Code of Cypress ( "Ordinance "). The Franchise Agreement and Ordinance are referred to collectively herein as the "Franchise;" and WHEREAS, pursuant to an Exchange Agreement between Time Warner Cable Inc. ( "Time Warner Cable "), Comcast and certain related entities, dated as of April 20, 2005, Comcast of Georgia, Inc. ( "Comcast of Georgia ") will assign the Franchise to C- Native Exchange I, LLC ( "CNE I" or "Franchisee "), and CNE I will become an indirect subsidiary of, and will do business as, Time Warner Cable (the "Exchange Transaction "); and WHEREAS, Comcast of Georgia and Time Warner Cable have filed FCC Form 394 (the "Transfer Application ") describing the Exchange Transaction; and WHEREAS, under the Federal Cable Act, the City has 120 days after receiving a request for approval of a transfer of a franchise accompanied by an FCC Form 394 to approve or deny the transfer, unless the City and requesting party agree to an extension; and WHEREAS, Comcast of Georgia, Time Warner Cable and the City agreed to various extensions to the City's action on approval or denial of the transfer request; and WHEREAS, on January 23, 2006 the City adopted Resolution No. 5915 rejecting and denying without prejudice FCC Form 394 relative to the transfer of the cable television franchise held by Comcast for the reasons stated in Resolution No. 5915 and Resolution No. 5916 conditionally approving a transfer of the franchise and/or control thereof to an entity controlled by Time Warner Inc. upon the satisfaction of certain conditions stated in Resolution No. 5916; and WHEREAS, on March' 13, 2006 the City adopted Resolution No. 5924 to deny and reject without prejudice a second application on FCC Form 394 relating to the transfer of a cable television franchise held by Time Warner Cable to TWE Holding I LLC (the "TWE Transaction "); and WHEREAS, after extensive negotiations between the parties, the City, Comcast of Georgia and Time Warner Cable have agreed in principle to the terms and conditions of a Transfer Agreement (the "Transfer Agreement "), which is attached hereto as Exhibit A, and a Memorandum of Understanding, dated as of June 26, 2006 (the "MOU ") which is attached hereto as Exhibit B (collectively, the "Transfer Documents "); and WHEREAS, the Transfer Documents establish the terms and conditions under which the Franchisee will accept the Franchise Agreement and the City will approve the transfer of the Franchise Agreement, as described above and in the Legal Documents; and WHEREAS, for the reasons stated in the staff report submitted to the City Council, the City is willing to approve the Transfer Documents and the transfer of the Franchise Agreement, so long as the rights and interests of the public and the City are protected; and WHEREAS, the City finds that the rights and interests of the public and the City are protected under the terms and conditions of the Transfer Documents. NOW, THEREFORE, THE CITY COUNCIL DOES HEREBY RESOLVE AS FOLLOWS: 1. The City Council does hereby consent, as said consent is contemplated by the provisions of the Franchise, to the Exchange Transaction and the TWE Transaction. 150 2. The City Council does hereby approve the terms and conditions of that certain "Agreement Relating to the Consent of the City of Cypress to the Transfer of the Franchise Agreement held by Comcast of Cypress, LLC, and Controlled by Comcast Corporation to C- Native Exchange I, LLC" (the "Transfer Agreement ") attached as Exhibit A. 3. The City Council does hereby approve the terms and conditions of the Memorandum of Understanding, dated as of June 26, 2006, attached as Exhibit B. 4. To the extent that this Resolution conflicts with Resolution No. 5915 and/or Resolution No. 5916, each passed on or about January 23, 2006, or with Resolution No. 5924 passed on March 13, 2005, this Resolution is effective and supersedes Resolution No. 5915, Resolution No. 5916 and/or Resolution No. 5924, as applicable. 5. The Mayor, the Mayor Pro Tem, the City Manager, the Administrative Services Manager, the City Attorney, and Special Counsel, or their designees, are hereby authorized and instructed to deliver executed copies of the Transfer Documents, and each of them, to the parties thereto, and to perform such other tasks and prepare such other documents as are necessary to implement the Transfer Documents. 6. If Comcast of Georgia and/or Time Warner Cable does not execute the Transfer Documents within thirty (30) days of the adoption of this Resolution, the City's consent to the transfer of the Franchise, as contemplated hereunder, is hereby deemed to be denied as of January 23, 2006. 7. This Resolution shall take effect immediately. PASSED, ADOPTED, AND APPROVED this 26th day of June, 2006. ATTEST: 1 HE CITY OF CYPRESS CITY CLERK OF THE CITY OF CYPRESS STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS CITY OF CYPRESS ) I, DENISE BASHAM, Acting City Clerk of the City of Cypress, California, DO HEREBY CERTIFY that the forgoing resolution was adopted by the City Council of said City at a regular meeting of said City Council held on the 26th day of June, 2006, and that it was so adopted by called vote as follows: AYES: 4 COUNCIL MEMBERS: McGill, Seymore, Luebben and Sondhi NOES: 0 COUNCIL MEMBERS: None ABSENT: 1 COUNCIL MEMBERS: McCoy CITY CLERK OF THE CITY OF CYPRESS 151 EXHIBIT A AGREEMENT RELATING TO THE CONSENT OF THE CITY OF CYPRESS TO THE TRANSFER OF THE FRANCHISE AGREEMENT HELD BY COMCAST OF CYPRESS, LLC TO AN ENTITY CONTROLLED BY TIME WARNER CABLE INC. This Agreement (the "Transfer Agreement ") is entered into this 26th day of June, 2006, between and among the City of Cypress ( "City "), Comcast of Georgia, Inc. ( "Comcast of Georgia" or "Transferor "), and C- Native Exchange I, LLC ( "CNE I" or "Franchisee "). WHEREAS, Copley /Colony Cablevision of Cypress, Inc. ( "CCCCI ") was granted a franchise by the City pursuant to Ordinance No. 727 dated May 29, 1984 as amended by an Agreement between the City and CCCCI dated July 15, 1986 and an Agreement between the City and CCCCI dated April 7, 1992 to construct, improve, operate and maintain a cable television system within the City (the "System ") as more particularly defined therein (the "Franchise Agreement "); and WHEREAS, control of the 50% interest in Copley /Colony Inc., the owner of CCCCI, held by Copley Press Electronics Company was sold to Colony Communications Inc., a wholly owned subsidiary of the Providence Journal Company and owner of the remaining 50% interest in Copley /Colony Inc. pursuant to an Agreement dated January 22, 1996 ( "January 1996 Transfer Agreement ") approved by the City pursuant to Resolution No. 4587 dated January 22, 1996; and WHEREAS, pursuant to an Agreement and Plan of Merger dated February 27, 1996 between the parent company of the Providence Journal Company, Continental Cablevision, Inc. and US WEST, Inc., the City, Continental Cablevision, Inc. and US WEST, Inc. entered into an Agreement related to the transfer of control of the Franchise Agreement US WEST, Inc. dated September 9, 1996 ( "September 1996 Transfer Agreement ") approved by the City pursuant to Resolution No. 4697 dated September 9, 1996; and WHEREAS, pursuant to an Exchange Agreement between Time Warner Cable Inc. ( "Time Warner Cable ") and Comcast Corporation ( "Comcast ") and certain related entities dated as of April 20, 2005, Comcast of Georgia will assign the Franchise to CNE I and CNE I will become an indirect subsidiary of, and will do business as, Time Warner Cable (the "Exchange Transaction "); and WHEREAS, Comcast of Georgia and Time Warner Cable have filed FCC Form 394 (the "Application ") describing the Exchange Transaction; and WHEREAS, the City Council of the City has reviewed the Exchange Transaction, as well as all relevant documents, staff reports and recommendations, the operation of the System and compliance with the Franchise Agreement and applicable law; and WHEREAS, the Exchange Transaction with respect to the System cannot go forth without written consent of the City pursuant to Chapter 6 of the City Code (the "Ordinance "); and 152 WHEREAS, based upon the evidence presented to the City Council, it has determined that it would be in the public interest to approve the Exchange Transaction. NOW, THEREFORE, it is agreed by and between the parties as follows: 1. The City Council of the City hereby gives its consent and approval to the Exchange Transaction whereby the Franchise Agreement and the System, including all of the assets thereof, shall be acquired and held by the Franchisee, with the performance of all obligations pursuant to the Franchise Agreement, the Ordinance, the January 1996 Transfer Agreement, the September 1996 Transfer Agreement and this Transfer Agreement guaranteed by Time Warner Cable upon closing of the Exchange Transaction, when control of the Franchise Agreement and the Franchisee is held by a subsidiary of Time Warner Cable. 2. The granting of the consent to the Exchange Transaction does not surrender or waive the right of the City to approve any subsequent change not described herein in the ownership of the Franchise Agreement or the ownership or control of the Franchisee, and the Franchisee agrees to comply with all requirements in the Franchise Agreement governing any franchise transfers and any material change, amendment, or modification of the ownership of the Franchisee and/or change in control of the Franchisee. 3. By executing this Transfer Agreement, the City and the Franchisee agree and acknowledge that this Transfer Agreement and consent resolution is not a new franchise agreement, the granting of a franchise, or the renewal of the existing franchise, but rather is exclusively an agreement to transfer the Franchise Agreement and this Transfer Agreement neither affects nor prejudices in any way the City's rights nor the Franchisee's rights there under, and that compliance with the Franchise Agreement as it exists as of the date of this Transfer Agreement, and assuming the economic impact, or lack thereof, of Federal, State and local statutes and administrative regulations existing as of the date of this Transfer Agreement, is neither commercially impracticable as the term is used in Section 625 of the Cable Communications Policy Act of 1984 and/or the Cable Television Consumer Protection and Competition Act of 1992 (collectively the "Cable Act ") nor economically infeasible upon closing of the Exchange Transaction based upon (i) any and all debt service incurred, or to be incurred, by the Franchisee, or any related entity, to directly or indirectly finance the Exchange Transaction, or (ii) any return on equity investment made, or to be made, by the Franchisee or any related entity, based upon the equity portion of the financing provided for the Exchange Transaction. 4. The Franchisee agrees and acknowledges that from and after the closing of the Exchange Transaction, it accepts the Franchise Agreement, the Ordinance, the January 1996 Transfer Agreement, the September 1996 Transfer Agreement, and this Transfer Agreement, including the Memorandum of Understanding being entered into pursuant to this Transfer Agreement (collectively, the "Legal Documents ") to be legally sufficient, valid, and binding and agrees to accept and abide by the same without condition or reservation. To the extent that the City or the Franchisee, or any related person or entity, challenges the validity or interpretation, or seeks the enforcement, of said above - listed Legal Documents in the future in any administrative proceeding or court of law, such a challenge or enforcement action shall be subject to all defenses which would have been available to the City or the Franchisee had the Transferor, or any related person or entity, brought said challenge(s) including, but not limited to, waiver, -2- 153 estoppel, consent, unclean hands and accord and satisfaction, as well as any and all defenses independently available to the City or the Franchisee. 5. Any material violation of this Transfer Agreement shall be deemed to be a violation of the Franchise Agreement. 6. The City hereby gives notice that the Exchange Transaction may create a taxable possessory interest upon which Franchisee may be liable for the payment of certain taxes. The Franchisee acknowledges that this section constitutes valid notice for the purpose of Revenue and Taxation Code Section 107.6. 7. By executing this Transfer Agreement, the Franchisee hereby accepts, from and after the closing of the Exchange Transaction, all the terms and conditions of the City's Charter, the Legal Documents, and any final non - appealable lawful orders or directives of any administrative agency relating to the Franchise Agreement or the System including, but not limited to, the Federal Communications Commission, and the Franchisee represents and warrants that it has examined the requirements of the Charter and the Legal Documents, as well as the applicable federal, state, or local laws or regulations, and agrees to abide by all the terms and conditions thereof. The Franchisee shall, among other things, assume all rate refund obligations and franchise fee liability, both actual and contingent, relating to the System. 8. Franchisee represents and warrants that the current level of local operations as required by the Legal Documents in the areas of customer service, maintenance, and PEG support shall be maintained or exceeded. 9. This Transfer Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. The parties agree that this Transfer Agreement will be considered signed when the signature of a party is delivered by facsimile transmission. Such facsimile signature shall be treated in all respects as having the same effect as an original signature. 10. As an express condition of the effectiveness of the approvals contained herein, Time Warner Cable shall guarantee the financial and operational performance of the Franchisee pursuant to the Legal Documents pursuant to the written guaranty attached as Exhibit A -1 (the "Time Warner Guaranty "). 11. Subject to paragraph 16 herein below, this Transfer Agreement shall be deemed effective upon execution by all parties (the "Effective Date ") so long as the Transfer Agreement and the Time Warner Guaranty have been executed and returned to the City. If these conditions have not been satisfied as set forth herein, the approving resolution shall become null and void, ab initio, and the Exchange Transaction shall be deemed disapproved for good cause as of January 23, 2006. 12. Franchisee represents that any letter of credit, insurance and bonding required by the Franchise Agreement and Ordinance has been obtained, and that there will be no gaps in required coverages or liabilities. Franchisee will continue to maintain any letter of credit and bonds that it was required to maintain under the Franchise Agreement notwithstanding the Exchange Transaction. -3- 154 13. Franchisee agrees to defend, indemnify and hold the City harmless against any loss, claim, damage, liability or expense (including, without limitation, reasonable attorney's fees) arising out of this Transfer Agreement and/or incurred as a result of any representation or warranty made by any party in the Application or in connection with the City's review of the Exchange Transaction which proves to be untrue or inaccurate in any material respect. In the event the City receives any such notice of a loss, claim, damage, liability or expense, the City shall promptly notify the Franchisee which shall, at the sole discretion of the City, assume sole and direct responsibility for defending against any such loss, claim, damage, liability or expense. 14. Any consent given by the City in this Transfer Agreement and in any resolution approving the Exchange Transaction is not an affirmation that Comcast of Cypress, LLC or any predecessor in interest is in compliance with, or previously complied with the Franchise Agreement. Nothing herein shall limit or prevent the City from utilizing any material breaches or defaults committed prior to the Effective Date if discovered after the Effective Date in any renewal proceeding or other proceeding relating to the Franchise Agreement if such material breaches or defaults are not cured by Franchisee within a reasonable time after receipt of notice thereof from the City. Any consent is made without prejudice to, or waiver of, the City's right to obtain full remedy for any past non - compliance. Any consent given by the City in this Transfer Agreement and any resolution approving this Transfer Agreement is not a finding that, after the Exchange Transaction, the Franchisee will be financially, technically or legally qualified, and no inference will be drawn, positively or negatively, as a result of the absence of a finding on this issue. Any consent is therefore made without prejudice to, or waiver of, the City's right to fully investigate and consider the cable operator's financial, technical and legal qualifications and any other relevant considerations during any proceeding including by way of example and not limitation, any future transfer or renewal proceeding. Without limiting the foregoing, any approval of the Exchange Transaction is not a finding, representation, or commitment, expressed or implied, that any statutory renewal rights exist in relation to the Franchise Agreement, that the renewal application filed by any prior franchisee survives the Exchange Transaction, that the Franchise Agreement will be renewed or extended (and approval shall not create an obligation to renew or extend the Franchise Agreement); that the Franchisee is "financially, technically or legally" qualified to hold a renewed franchise; or that any other renewal issue that may arise with respect to Franchisee's past performance or future cable - related needs and interests will be resolved in a manner favorable to the Franchisee. 15. The City will be reimbursed for all costs and expenses reasonably incurred by the City in processing and evaluating the information relating to the proposed assignment and ultimate transfer of control of the Franchise Agreement and to settle any existing claims related to Comcast of Cypress' compliance with the franchise prior to approval of this Transfer Agreement. Such payment will be the sum of $9,700 and will be paid to the City within forty - five (45) days after approval of this Transfer Agreement by the City Council. 16. The City, the Franchisee and TWE Holding I LLC shall enter into a Memorandum of Understanding ( "MOU ") in the form attached hereto as Exhibit B; provided, however, the MOU shall only become effective upon the closing of the Exchange Transaction and in the event the Exchange Transaction does not close by December 31, 2006, then the MOU shall be void and of no force or effect, this Transfer Agreement shall also be void ab initio and of no force or effect, and consent to the Exchange Transaction shall be deemed disapproved for good cause as of January 23, 2006. -4- APPROVED AS TO FORM: By Rutan & Tucker, LLP William M. Marticorena, Special Counsel CITY OF CYPRESS, a municipal corporation By: Lydia Sondhi Mayor COMCAST OF GEORGIA, INC., as the Transferor By: Its: C- NATIVE EXCHANGE I, LLC, as the Franchisee By: Time Warner Cable Inc., its controlling parent upon closing of the Exchange Transaction By: -5- David O'Hayre Executive Vice President, Investments 155 156 EXHIBIT A -1 TIME WARNER CABLE INC. GUARANTY GUARANTY, dated as of June 26, 2006, made by TIME WARNER CAM F INC., a Delaware corporation ( "Time Warner Cable" or "Guarantor "), in favor of the City of Cypress, California ( "Beneficiary "). WHEREAS, in accordance with the relevant provisions of the City of Cypress Municipal Code, the Beneficiary, pursuant to action by the City Council on June 26, 2006, has approved the transfer of the Franchise entered into on May 29, 1984 and approved by Ordinance No. 727 (the "Franchise Agreement ") from Comcast of Cypress, LLC ( "Comcast of Cypress ") to C- Native Exchange I, LLC ( "CNE I" or "Transferee "), which ultimately, upon the close of a transaction (the "Exchange Transaction ") between Guarantor and Comcast Corporation ( "Comcast ") and certain related entities dated as of April 20, 2005, will become an indirect subsidiary of, and will do business as, Time Warner Cable. WHEREAS, the City's approval was conditioned, among other things, on Guarantor unconditionally guaranteeing the performance of CNE I under the Franchise Agreement; the January 1996 Transfer Agreement; the September 1996 Transfer Agreement; and the "Agreement Relating to the Consent of the City of Cypress to the transfer of the Franchise Agreement held by Comcast of Cypress, LLC to an Entity Controlled by Time Warner Cable Inc." ( "2006 Transfer Agreement), including the Memorandum of Understanding entered into pursuant to the 2006 Transfer Agreement (collectively, the "Legal Documents "); and WHEREAS, upon closing of the Exchange Transaction, Guarantor will become the indirect parent of CNE I; and Guarantor will have a substantial interest in the cable system and the Franchise, as well as in the management and control of CNE I, and in the Legal Documents. -6- 157 NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and to induce Beneficiary to consent to the transfer of the Franchise issued by Beneficiary and currently held by Comcast of Cypress to CNE I, in accordance with the Federal Communications Commission Form 394 filed by Guarantor, Guarantor agrees as follows: 1. Interpretive Provisions. (a) The words "hereof," "herein" and "hereunder" and words of similar import, when used in this Guaranty, shall refer to this Guaranty as a whole and not to any particular provision of this Guaranty, and section and paragraph references are to this Guaranty 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. 2. Guaranty. (a) From and after the close of the Exchange Transaction, Guarantor unconditionally and irrevocably guarantees to Beneficiary the timely and complete performance of all obligations of the Transferee under the Legal Documents (the "Guaranteed Obligations "). The Guaranty is an irrevocable, absolute, continuing guarantee of payment and performance, and not a guarantee of collection. If the Transferee fails to pay any of its monetary Guaranteed Obligations in full when due in accordance with the terms of the Legal Documents, 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 the Transferee under the Legal Documents or otherwise. -7- 158 (b) This Guaranty shall remain in full force and effect for so long as the Transferee, or its successors or assigns, are providing services over the cable system in the City under the Franchise Agreement; provided, however, that this Guaranty shall terminate upon 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 the Transferee under the Franchise Agreement, or (ii) any direct or indirect transfer of the Franchise from Transferee to, or direct or indirect acquisition (whether pursuant to a sale of assets or stock or other equity interests, merger or otherwise) of Transferee or any successor thereto by, any other person or entity, a majority of whose equity and voting interests are not beneficially owned and controlled, directly or indirectly, by Guarantor, provided that any such direct or indirect transfer is subject to any terms and conditions as may be imposed by the City in connection with the transfer approval process required by the Legal Documents. Upon termination of this Guaranty in accordance with this Section 2(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. 3. 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 Guaranty or acceptance of this Guaranty. Guarantor waives diligence, presentment, protest and demand for payment to the 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 the Transferee is entitled or which is served upon the Transferee at the same time such notice is sent to or served upon the Transferee. -8- 159 4. Representations and Warranties. Each of Guarantor and Beneficiary represents and warrants that: (i) the execution, delivery and performance by it of this Guaranty is 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 Guaranty, 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. 5. Binding Effect. This Guaranty, when executed and delivered by both Beneficiary and Guarantor, 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). 6. 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: -9- To Guarantor and Transferee: 160 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 Cypress 5275 Orange Avenue Cypress, CA 90630 Telephone: (714) 229 -6685 Telecopy: (714) 229 -6682 Attention: City Clerk With Copy to: City Manager City of Cypress 5275 Orange Avenue Cypress, CA 90630 Telephone: (714) 229 -6688 Telecopy: (714) 229 -6682 7. Integration. This Guaranty 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. 8. Amendments in Writing. None of the terms or provisions of this Guaranty 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 Guaranty may be waived by Beneficiary in a letter or agreement executed by Beneficiary. 9. Section Headings. The section headings used in this Guaranty are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof. -10- 10. 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 Guaranty. 11. Expenses. All costs and expenses incurred in connection with this Guaranty and the transactions contemplated hereby shall be borne by the party incurring such costs and expenses. 12. Counterparts. This Guaranty 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. 13. GOVERNING LAW. THIS GUARANTY 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. IN WITNESS WHEREOF, each of the undersigned has caused this Guaranty to be duly executed and delivered by its duly authorized officer as of the day and year first above written. TIME WARNER CABLE INC. By: Name: Title: CITY OF CYPRESS, a municipal corporation By: Lydia Sondhi, Mayor 188012_1 161 162 Exhibit B MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF CYPRESS, CALIFORNIA AND C- NATIVE EXCHANGE I, LLC RELATING TO THE TERMS AND CONDITIONS UPON WHICH THE EXISTING CABLE TELEVISION FRANCHISE WILL BE RENEWED This Memorandum of Understanding (the "MOU ") constitutes a valid and binding contractual agreement between the City of Cypress, California (the "City "), a California municipal corporation organized and existing under the State of California, on the one hand, and Comcast of Cypress, LLC ( "Comcast of Cypress ") controlled by Comcast Corporation ( "Comcast "); C- Native Exchange I, LLC ( "CNE -I" or "Franchisee ") upon becoming an indirect subsidiary of Time Warner Cable Inc. ( "TWC "); and TWE Holding I LLC ( "TWE Holding "), upon acquiring the franchise in the City currently held by TWC, on the other, and is dated as of June 26, 2006. The MOU shall constitute a valid and binding obligation of the parties, enforceable through the laws of contract, and is hereby deemed by the parties to be consistent and enforceable under all relevant provisions of federal and state law. The parties agree and acknowledge that the City has accepted and relied upon the Franchisee's voluntary execution of this MOU in partial consideration of its approval of the Exchange Transaction, as that term is defined in the Transfer Agreement Relating to the Consent of the City of Cypress to the Transfer of the Franchise Agreement held by Comcast of Georgia, Inc. to an Entity Controlled by Time Warner Cable Inc. ( "Transfer Agreement "). Section 1. Franchise Term. Franchise term of ten (10) years to terminate December 31, 2016; such term to commence December 31, 2006 unless the parties hereto agree in writing otherwise. Section 2. PEG Support. The Franchisee and TWE Holding shall provide funding for public, educational and governmental ( "PEG ") access as follows: -12- 163 (a) The Franchisee and TWE Holding shall pay the City an initial PEG Access grant ( "Initial PEG Access Grant ") by no later than January 31, 2007, the sum of which shall equal the number of Franchisee's and TWE Holding's cable television subscribers who pay for the basic service tier ( "BST ") of cable television service residing in the City ( "Subscriber ") as of December 31, 2006 multiplied by $28.00. By way of example, if there are 1500 such Subscribers on December 31, 2006, the payment would be $42,000 ($28 x 1500). The obligations incurred pursuant to this Section (a) shall be deemed to be incurred on December 31, 2006, unless the parties hereto agree in writing otherwise. (b) Commencing January 1, 2007, Franchisee and TWE Holding shall provide a monthly PEG grant (the "Ongoing PEG Grant ") of $.50 per Subscriber per month. With respect to bulk accounts, Franchisee and TWE Holding shall pay such $.50 based on an equivalent subscriber account (total bulk revenues divided by the published BST rate). The Ongoing PEG Grant set forth herein is in lieu of and replaces any PEG Access Support (as such term is defined hereinbelow) obligations in the Franchise or otherwise as of January 1, 2007. (c) Upon request, the City shall provide Franchisee and TWE Holding with an annual accounting of the expenditures of both the Initial PEG Access Grant and the Ongoing PEG Grant (collectively, the "PEG Grants ") provided for herein to ensure such grants are used for PEG access capital and non - capital purposes. If Franchisee or TWE Holding believes City has failed to demonstrate compliance with the foregoing requirement, Franchisee or TWE Holding shall provide City, within thirty (30) days of receipt of an annual accounting, notice of its objections to the use of the PEG Grants, or either of them. The parties shall thereafter meet at the reasonable request of either party to address the objections identified by Franchisee or TWE Holding. If Franchisee or TWE Holding reasonably -13- 164 conclude that City has expended the PEG Grants, or either of them, in a manner inconsistent with the limitations imposed herein, the Franchisee or TWE Holding may, after thirty (30) days notice to the City advise the City of its intention to implement a credit on its next regularly scheduled franchise fee payment in the amount of any expenditure inconsistent with PEG access purposes. If the City disputes Franchisee's or TWE Holding's allegation(s) and the City commences a franchise violation against Franchisee or TWE Holding, then Franchisee or TWE Holding shall pay City the disputed amounts and the City shall hold the disputed monies in a separate interest bearing account until a final order is issued by a court of competent jurisdiction and all appeals are exhausted. Any monies, including interest on such monies, so held by the City shall be distributed in accordance with such final order (after exhaustion of any and all appeals) or as City and Franchisee or TWE Holding may agree. (d) The Ongoing PEG Grant shall continue throughout the duration of the Franchise unless otherwise directed in writing by the City. Subject to the provisions of paragraph (c) hereof, the Initial PEG Grant and the Ongoing PEG Grant may be used for equipment, facilities, and ongoing staffing and non - capital support for both one -way video PEG access services and two -way interactive PEG access services (collectively, "PEG Access Support"), at City's sole discretion without offset or recoupment to the franchise fee or any other payment due the City. The Ongoing PEG Grant shall be paid to the City on a quarterly basis. (e) The Franchisee and TWE Holding agree that the commitments indicated in this Section 2 shall not be charged against any franchise fees due the City during the term of the Franchise. The Franchisee and TWE Holding agree to meet all of the commitments of Section 2 through the term of the Franchise. -14- 165 (f) The City specifically reserves the right to grant, at any time, such additional franchises for a cable television system or authorizations which include the right to transmit video programming over closed transmission paths in the City ( "Additional Franchise "), as it deems appropriate, subject to applicable State and Federal law, provided that if the City grants an Additional Franchise, then, unless expressly prohibited by law, such Additional Franchise shall, when taken as a whole, contain no more favorable or less burdensome terms and conditions than those contained herein; provided, however, all franchises, including any Additional Franchise, shall be subject to the same material financial obligations (i.e., franchise fee payments and PEG Access Support obligations). Upfront PEG access capital grant obligations will be calculated on a pro -rata basis based on the term of the Additional Franchise compared to that term granted hereunder. Monthly per customer PEG access grant payments will be based on the Franchisee's or TWE Holding's current obligation at the time that any Additional Franchise is awarded. 1. In the event City elects to grant an Additional Franchise as provided in paragraph (f) hereof, City will notify Franchisee and TWE Holding in writing at least sixty (60) days in advance of granting such Additional Franchise, with a copy of the proposed Additional Franchise. 2. Within thirty (30) days after receipt, Franchisee or TWE Holding may give written notice to City that the proposed Additional Franchise is inconsistent with (f) above ( "Notice of Inconsistency "). 3. In the event Franchisee or TWE Holding provides City with a Notice of Inconsistency, City shall, prior to granting the Additional Franchise, notify Franchisee or TWE Holding of the City's determination related to Franchisee's or TWE Holding's Notice of Inconsistency. -15- 166 4. If City determines that the terms of an Additional Franchise are more favorable or less burdensome than those imposed upon Franchisee or TWE Holding, then City shall: (a) Make such modifications as it deems necessary to ensure that the terms of the Additional Franchise are no more favorable or less burdensome than those imposed upon Franchisee and TWE Holding; or (b) Modify the terms and requirements of Franchisee's and TWE Holding's Franchises as mutually agreed to by the parties. Section 3. Franchise Renewal Agreement. (a) The parties shall negotiate in good faith for the purposes of development and mutual execution of a franchise renewal agreement (the "Renewal Agreement ") including the terms and conditions hereof. The parties shall meet and confer as appropriate and necessary for the purposes of achieving this result. (b) If the parties are not able to mutually agree to a Renewal Agreement containing terms and conditions acceptable to all parties on or before December 31, 2006 (the "Negotiation Period "), the existing cable television franchise agreement as amended (the "Franchise ") shall be, as of December 31, 2006, reinstated if expired and extended as modified by the terms and conditions of this MOU for a period specified in Section 1 hereof (the "Franchise Extension "). If the Franchise Extension occurs, the existing terms and conditions of the Franchise shall remain in effect except those terms and conditions of the Franchise shall be deemed amended and superseded to the extent inconsistent with the terms and conditions of this MOU. In the event of any conflict between the express provisions of the Franchise and this MOU, the MOU shall govern. In the event of any ambiguity regarding the joint interpretation of the Franchise and the MOU, the Franchise shall be interpreted in -16- 167 such a manner as to effectuate the terms and conditions of the MOU to the maximum extent possible. All provisions of the Franchise which are not affected by the MOU shall remain in full force and effect. (c) This MOU shall be effective upon its approval by the City Council; provided, however, if the Exchange Transaction (as that term is defined in the Transfer Agreement) does not close by December 31, 2006, then this MOU shall be void and of no further force or effect. If the Exchange Transaction closes, Comcast of Georgia, but not CNE I, shall be relieved of its duties, obligations and liabilities under this MOU after the date that the Exchange Transaction closes. Until the Exchange Transaction closes, CNE I shall have no duties, obligations or liabilities under this MOU. CITY OF CYPRESS, CALIFORNIA By: Its: Dated: COMCAST OFCYPRESS, LLC By: Its: Dated: -17- 168 C- NATIVE EXCHANGE I, LLC, as the Franchisee By: Time Warner Cable Inc., its controlling parent upon closing of the Exchange Transaction By: David O'Hayre Executive Vice President, Investments Dated: TWE HOLDING I LLC By: Time Warner Cable Inc., its controlling parent upon closing of the TWE Transaction By: David O'Hayre Executive Vice President, Investments Dated: