Time Warner to Bright House Transfer Agreement

This CABLE FRANCHISE TRANSFER AGREEMENT (the "Transfer Agreement") is made and entered into on the _____ day of ____________________, 2002, by and among the City of Tampa, a Florida municipal corporation (the "City"), Time Warner Entertainment-Advance/Newhouse Partnership, a New York general partnership ("TWE-A/N"), and Advance/Newhouse Partnership, a New York general partnership ("A/N") and TWEAN Subsidiary, LLC, a Delaware limited liability company ("TWEAN Subsidiary") (TWEAN Subsidiary, A/N and TWE-A/N may be referred to jointly herein as the "Companies").

RECITALS

WHEREAS, TWE-A/N currently holds a cable franchise (the "Franchise") from the City pursuant to that certain Franchise Agreement To Provide Cable Services between the City and TWE-A/N dated as of March 23, 2000 (the "Franchise Agreement"), and subject to the "Tampa Cable Communications Ordinance", Chapter 7 of the City of Tampa Code (the "Cable Ordinance"), all of which documents, as any of them may lawfully be or may have been amended from time to time, are collectively referred to as the "Franchise Documents"; and

WHEREAS, TWE-A/N entered into an agreement (the "Aquarium Agreement") with the City and The Florida Aquarium, Inc., regarding the provision of cable programming services by TWE-A/N for The Florida Aquarium, Inc., and an agreement (the "Arts Center Agreement") with the City and the Tampa Bay Performing Arts Center, Inc., regarding the provision of cable programming services by TWE-A/N for the Tampa Bay Performing Arts Center, Inc. (the Aquarium Agreement and the Arts Center Agreement are collectively referred to as the "Programming Agreement"); and

WHEREAS, pursuant to a Master Transaction Agreement dated as of August 1, 2002, among TWE-A/N, Time Warner Entertainment Company, L. P., Paragon Communications and A/N (the "Master Transaction Agreement"), TWEAN Subsidiary will acquire the Franchise currently held by TWE-A/N and the cable system serving the City of Tampa (the "System") (the "Proposed Transaction"); and

WHEREAS, Section 8 of the Franchise Agreement provides that the prior written consent of the City is required for the Proposed Transaction and Section 7-70 of the Cable Ordinance provides that the Franchise Agreement shall not be assigned, transferred, sold or disposed of without the prior consent of the Mayor of the City as authorized by resolution of the City Council of the City; and

WHEREAS, on or about July 18, 2002, TWE-A/N and TWEAN Subsidiary filed an FCC Form 394 with the City and requested that the City consent to the Proposed Transaction (the "Transfer Application"); and

WHEREAS, pursuant to the Master Transaction Agreement, TWE-A/N will transfer the Franchise and the System to a new company, TWEAN Subsidiary; and

WHEREAS, in conjunction with the Proposed Transaction, TWE-A/N desires to assign its rights and obligations under the Programming Agreement to TWEAN Subsidiary; and

WHEREAS, such assignment of the Programming Agreement requires, among other things, the prior consent of the City; and

WHEREAS, TWEAN Subsidiary agrees to provide the City with a guaranty from A/N guaranteeing performance by TWEAN Subsidiary of all of TWEAN Subsidiary’s obligations under the Franchise Documents and this Transfer Agreement; and

WHEREAS, TWEAN Subsidiary agrees to provide the City with the types of insurance policies, performance bond and letter of credit as described in, and satisfying the requirements of, the Franchise Documents; and

WHEREAS, TWEAN Subsidiary has agreed to comply with the Franchise Documents, the Programming Agreement and applicable law from and after the consummation of the Proposed Transaction; and

WHEREAS, relying on TWE-A/N’s and TWEAN Subsidiary’s representations, the City is willing to grant its consent to the Proposed Transaction and the assignment of the Programming Agreement from TWE-A/N to TWEAN Subsidiary, subject to the terms and conditions set forth herein;

NOW, THEREFORE, in consideration for the City’s consent to the Proposed Transaction and the assignment of the Programming Agreement as described herein, and subject to the terms and conditions of this Transfer Agreement and of the resolution of the City Council of the City consenting to the Proposed Transaction and the assignment of the Programming Agreement as described herein, and authorizing the Mayor of the City to consent to the Proposed Transaction and execute this Transfer Agreement (the "Transfer Resolution"), the Parties hereto do hereby agree as follows:

Section 1. DEFINITION.

For purposes of this Transfer Agreement, "Franchisee" shall mean TWE-A/N prior to the effective date of the Franchise transfer resulting from the consummation of the Proposed Transaction, and TWEAN Subsidiary on and after that date.

Section 2. TRANSFER OF FRANCHISE.

1. The foregoing recitals are true and correct and are incorporated herein by reference.
2. Subject to the consummation of the Proposed Transaction, TWE-A/N hereby transfers and assigns to TWEAN Subsidiary the Franchise, including all rights, interests, obligations and responsibilities held therein by TWE-A/N.
3. Subject to the consummation of the Proposed Transaction, TWEAN Subsidiary hereby accepts the transfer and assignment of the Franchise, including all rights, interests, obligations and responsibilities of the Franchise.
4. Subject to the fulfillment of each of the conditions set forth in Section 8 of this Transfer Agreement, the City has consented through the Transfer Resolution, and the Mayor of the City by execution of this Transfer Agreement, to the Proposed Transaction as specified in the Transfer Application and the assignment of the Programming Agreement from TWE-A/N to TWEAN Subsidiary, in consideration for the promises and performances of TWE-A/N, A/N and TWEAN Subsidiary as expressed in this Transfer Agreement.
5. Subject to the fulfillment of each of the conditions set forth in Section 8 of this Transfer Agreement, the transfer and assignment of the Franchise and the Programming Agreement from TWE-A/N to TWEAN Subsidiary shall be effective upon the effective date of the Franchise transfer resulting from the consummation of the Proposed Transaction. Notice of such date shall be given by TWEAN Subsidiary to the City.
6. In accordance with the Franchise Documents, within thirty (30) days of the effective date of the Franchise transfer resulting from the consummation of the Proposed Transaction, A/N shall file with the City an executed copy of the final version of the Master Transaction Agreement, including the bill of sale transferring the System from TWE-A/N to TWEAN Subsidiary.

Section 3. ACCEPTANCE OF FRANCHISE OBLIGATIONS.

1. The Franchisee hereby accepts, acknowledges and agrees that, upon the effective date of the Franchise transfer, and assignment of the Programming Agreement, resulting from the consummation of the Proposed Transaction, it will continue to be bound by all the commitments, duties, and obligations, present, continuing and future, of the Franchisee embodied in the Franchise Documents and the Programming Agreement, and that the Proposed Transaction will have no effect on such obligations.
2. The Companies agree that neither the Proposed Transaction nor the City’s consent to the Proposed Transaction shall in any respect relieve the Franchisee or any of its successors in interest of responsibility for past acts or omissions, known or unknown. TWEAN Subsidiary hereby agrees that it shall be liable for any such acts and omissions, known and unknown, including liability for any and all previously accrued but unfulfilled obligations to the City under the Franchise Documents, the Programming Agreement and applicable law, for all purposes, including but not limited to, review of past performance for purposes of determining whether its Franchise should be renewed. TWE-A/N agrees that all acts and omissions of the Franchisee occurring prior to the effective date of the Franchise transfer resulting from the consummation of the Proposed Transaction will continue to be deemed to be those of TWE-A/N, and TWE-A/N shall not be released from any obligations or liabilities existing under the Franchise Documents or the Programming Agreement prior to such effective date. The Proposed Transaction shall not restrict or expand the rights of the Franchisee under or related to the Franchise Documents as compared to those that could have been exercised by the Franchisee prior to the Proposed Transaction.
3. The Companies shall ensure that all records pertaining to the Franchise, including financial records, shall continue to be available after the effective date of the Franchise transfer resulting from the consummation of the Proposed Transaction in the same way and to the same extent such information was available prior to the Proposed Transaction.
4. TWEAN Subsidiary shall execute and submit to the City an Acceptance of Franchise by TWEAN Subsidiary in substantially the form attached hereto as Exhibit B. The signed Acceptance of Franchise must be provided within thirty (30) days after the closing of the Proposed Transaction.
5. TWEAN Subsidiary shall provide a guaranty in the form attached hereto as Exhibit A from A/N, guaranteeing performance by TWEAN Subsidiary of all of TWEAN Subsidiary’s obligations under the Franchise Documents and this Transfer Agreement. The signed guaranty must be provided within thirty (30) days after the closing of the Proposed Transaction.
6. TWEAN Subsidiary shall obtain and file with the City an insurance certificate evidencing the types of insurance policies described in and required by the Franchise Documents, and a performance bond as described in and required by the Franchise Documents, each of which shall be in effect as of the effective date of the Franchise transfer resulting from the consummation of the Proposed Transaction. Such documentation must be provided within thirty (30) days after the closing of the Proposed Transaction.
7. TWEAN Subsidiary shall deposit with the City a letter of credit satisfying the requirements of the Franchise Documents. The letter of credit must be deposited within thirty (30) days after the closing of the Proposed Transaction.
8. TWE-A/N agrees that, from and after the effective date of the Franchise transfer resulting from the consummation of the Proposed Transaction, it will not take any action inconsistent with the promises contained in the Franchise Documents, and shall fully comply and cause the Franchisee to fully comply with all of the terms and conditions set forth in the Franchise Documents and (when executed and delivered) this Transfer Agreement.
9. By execution of this Transfer Agreement, TWEAN Subsidiary, TWE-A/N and A/N accept the validity of the terms and conditions of this Transfer Agreement and the Franchise Documents in their entirety under applicable law in existence as of the effective date of this Transfer Agreement and hereby agree that they will not assert in any forum that this Transfer Agreement or the Franchise Documents are not consistent with applicable law in existence as of the effective date of this Transfer Agreement.

Section 4. RESERVATION OF RIGHTS.

1. The City reserves all rights not expressly granted in this Transfer Agreement, including without limitation those specified below.
2. The City waives none of its rights with respect to the Franchisee’s compliance with the requirements set forth in the Franchise Documents and the Programming Agreement. At no time will the Companies contend, either directly or indirectly, that the City is barred, by reason of the Proposed Transaction, from considering, or raising claims based on, any defaults of the Franchisee, any failure by the Franchisee to provide reasonable service in light of the community’s needs, or any failure by the Franchisee to comply with the terms and conditions of the Franchise Documents, the Programming Agreement or with applicable law. The City’s consent to the Proposed Transaction shall in no way be deemed a representation by the City that the Franchisee is in compliance with all of its obligations under the Franchise Documents and the Programming Agreement.
3. Neither this Transfer Agreement, nor any other action or omission by the City at or before the execution of this Transfer Agreement, shall be construed to grant the City’s consent to any future transfer of the Franchise and/or the System, and/or any future change in ownership and/or control of TWEAN Subsidiary, the Franchise and/or the System, whether or not any such transfer or change is contemplated in the Master Transaction Agreement or elsewhere, or to mean that the City’s consent to any future transaction is not required. The City’s consent to the Proposed Transaction is limited solely to the transfer of the Franchise and the System from TWE-A/N to TWEAN Subsidiary.
4. Any consent given by the City to the Proposed Transaction is made without prejudice to, or waiver of, the City’s right to investigate and take into account any lawful considerations during any future Franchise renewal or transfer process.
5. This Transfer Agreement does not affect and shall not be construed to affect the rights and authority of the City to regulate or authorize, by ordinance, license or otherwise, use of the public rights-of-way for purposes other than for cable service.

Section 5. NO EFFECT ON RATES.

The Companies represent and warrant that neither the Proposed Transaction nor this Transfer Agreement will result in any increase in subscriber rates.

Section 6. REPRESENTATIONS AND WARRANTIES.

1. Each of the Companies hereby represents and warrants that at the time of the execution of this Transfer Agreement: (a) it is a corporation or partnership duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized, and it is authorized to conduct business in the State of Florida; (b) the Franchise Documents, the Programming Agreement and, assuming due execution hereof by the other parties hereto, this Transfer Agreement constitute legal, valid and binding obligations of such Company enforceable in accordance with their terms; (c) the execution and delivery of, and performance by such Company under, this Transfer Agreement, the Programming Agreement and the Franchise Documents, where applicable, are within such Company’s power and authority without the joinder or consent of any other party and have been duly authorized by all requisite corporate or partnership action on the part of such Company and are not in contravention of such Company’s partnership agreement, charter, bylaws and/or other organizational documents; and (d) no representation made to the City by such Company is incomplete, untrue or inaccurate in any material respect.
2. TWEAN Subsidiary represents and warrants that neither the Proposed Transaction nor this Transfer Agreement will adversely affect its ability to meet the requirements of the Franchise Documents or the Programming Agreement, or to meet the City’s future cable-related needs and interests in a renewal Franchise.
3. The Companies represent and warrant that the Proposed Transaction will not have any adverse financial effect on the System, or adversely affect performance.
4. TWEAN Subsidiary represents and warrants that upon the effective date of the Franchise transfer resulting from the consummation of the Proposed Transaction, TWEAN Subsidiary’s financial qualifications will be such as shall enable it to maintain and operate the System in the City of Tampa.
5. TWEAN Subsidiary represents and warrants that the Proposed Transaction will not in any respect reduce the quality of customer service in the City of Tampa.
6. TWEAN Subsidiary represents and warrants that the Proposed Transaction will not reduce the quality of existing System maintenance or repair.

Section 7. INDEMNIFICATION.

1. Each of the Companies agrees to indemnify and hold the City harmless against any loss, claim, damage, liability or expense (including, without limitation, reasonable attorneys’ fees, whether at trial, on appeal or otherwise) caused by any representation or warranty made by that Company herein which is determined by a court of competent jurisdiction or by the parties to be untrue or inaccurate in any material respect.
2. TWEAN Subsidiary shall indemnify and hold the City harmless against any loss, claim, damage, liability or expense (including, without limitation, reasonable attorneys’ fees, whether at trial, on appeal or otherwise) incurred by the City in connection with any action or proceeding commenced by a third party (not one of the parties to this Transfer Agreement) claiming or asserting any liability of the City relating to or arising from the Proposed Transaction or this Transfer Agreement.

Section 8. ADDITIONAL CONDITIONS.

1. Any City consent to the Proposed Transaction or the assignment of the Programming Agreement provided for in this Transfer Agreement, the Transfer Resolution or elsewhere, shall be void and of no force or effect, and the City’s consent to the Proposed Transaction and the assignment of the Programming Agreement shall be deemed to have been timely denied in the event of the failure of the occurrence of each of the following conditions:
   1. TWEAN Subsidiary shall have acquired the Franchise and the System and the Proposed Transaction shall close by January 31, 2003;
   2. The acquisition of the Franchise and the System by TWEAN Subsidiary and the closing of the Proposed Transaction shall be on terms that are in all material respects substantially similar to the terms disclosed to the City in the Transfer Application;
   3. The City shall have received an executed guaranty from A/N as provided in Section 3.5 of this Transfer Agreement within thirty (30) days after the closing of the Proposed Transaction;
   4. The City shall have received an executed Acceptance of Franchise from TWEAN Subsidiary as provided in Section 3.4 of this Transfer Agreement within thirty (30) days after the closing of the Proposed Transaction.
   5. TWEAN Subsidiary shall have deposited with the City a letter of credit satisfying the requirements of the Franchise Documents as provided in Section 3.7 of this Transfer Agreement within thirty (30) days after the closing of the Proposed Transaction;
   6. TWEAN Subsidiary shall have obtained and filed with the City an insurance certificate and performance bond described in and required by the Franchise Documents, as provided in Section 3.6 of this Transfer Agreement, within thirty (30) days after the closing of the Proposed Transaction;
   7. This Transfer Agreement shall have been executed by all of the parties hereto on or before January 31, 2003.
2. The Companies hereby waive any and all claims that they may have that any denial of the Transfer Application that results from the failure of the conditions in Section 8.1 of this Transfer Agreement fails to satisfy the deadlines established by applicable law including, without limitation, claims based on, arising out of, or relating to 47 U.S.C. Section 537, as amended, and agree that they shall be deemed to have agreed to an extension of the time to act on the Transfer Application as required to make any denial effective.

Section 9. BREACHES.

Any breach of this Transfer Agreement, including, but not limited to, any representations and/or warranties contained in this Transfer Agreement that are found to be incomplete, untrue or inaccurate in any material respect, shall be deemed a breach of the Franchise Agreement and shall be subject to all remedies available for a breach of the Franchise Agreement, in addition to any other remedies the parties may have under this Transfer Agreement at law or equity.

Section 10. MISCELLANEOUS PROVISIONS.

1. EFFECTIVE DATE. This Transfer Agreement shall be effective and binding upon the parties hereto once it has been signed by all the parties hereto.
2. BINDING ACCEPTANCE. This Transfer Agreement shall bind and benefit the parties hereto and their respective heirs, beneficiaries, administrators, executors, receivers, trustees, successors and assigns, and the promises and obligations herein shall survive the expiration date hereof. Any purported assignment of this Transfer Agreement is void without the express written consent of the parties hereto.
3. VOLUNTARY AGREEMENT. This Transfer Agreement is freely and voluntarily given by each party, without any duress or coercion, and after each party has consulted with its counsel. Each party has carefully and completely read all of the terms and provisions of this Transfer Agreement. Neither any of the Companies, nor any of their affiliates, nor the City, will take any action to challenge any provision of this Transfer Agreement; nor will they participate with any other person or entity in any such challenge.
4. SEVERABILITY. If any term, condition or provision of this Transfer Agreement shall, to any extent, be held to be invalid, preempted or unenforceable, the remainder hereof shall be valid in all other respects and continue to be effective.
5. COUNTERPARTS. This Transfer Agreement may be executed in several counterparts, each of which when so executed shall be deemed to be an original copy, and all of which together shall constitute one agreement binding on all parties hereto, notwithstanding that all parties shall not have signed the same counterpart.
6. CONFORMING AMENDMENTS TO FRANCHISE AGREEMENT. TWEAN Subsidiary agrees to accept negotiated amendments to the Franchise Agreement to the extent necessary to reflect the Proposed Transaction or the provisions of this Transfer Agreement.
7. GOVERNING LAW. This Transfer Agreement shall be deemed to be executed in the City of Tampa, Florida, and shall be governed and construed in all respects by the laws of the State of Florida.
8. CAPTIONS AND REFERENCES. The captions and headings of sections throughout this Transfer Agreement are intended solely to facilitate reading and reference to the sections and provisions of this Transfer Agreement. Such captions and headings shall not affect the meaning or interpretation of this Transfer Agreement.

END OF SUBSTANTIVE PROVISIONS

SIGNATURE PAGE AND EXHIBITS TO FOLLOW

IN WITNESS WHEREOF, the parties hereto have caused this Transfer Agreement to be executed at the place and on the day hereinabove first written.

ATTEST: CITY OF TAMPA

By: ___________________________ By: _________________________

CITY CLERK/ DICK A. GRECO, MAYOR

DEPUTY CITY CLERK

The execution of this document

was authorized by Resolution No. _________.

________________________

SAMUEL S. HAMILTON

ASSISTANT CITY ATTORNEY

TIME WARNER ENTERTAINMENT-ADVANCE/NEWHOUSE PARTNERSHIP

By: Advance Cable Holdings Corp.

By: ______________________

NAME:

TITLE:

ADVANCE/NEWHOUSE PARTNERSHIP

By: Advance Cable Holdings Corp.

By: ______________________

NAME:

TITLE:

TWEAN SUBSIDIARY, LLC

By: Advance/Newhouse Partnership, Manager

By: ________________________

TITLE

Exhibit A           Exhibit B