HomeMy WebLinkAboutADELPHIA 1E - 2003
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CLERK OF CO CIL
DATE: 03/<'110 5
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A-2003-031
FIFTH AMENDMENT
TO
CABLE TELEVISION FRANCmSE AGREEMENT
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TillS FIFTH AMENDMENT TO THE CABLE TELEVISION FRANCmSE AGREEMENT,
effective as of the date specified below in Section 6, is entered into by the City of Santa Ana, a
charter city and municipal corporation duly organized and existing under the Constitution and
laws of the State of California ("Grantor"), and Adelphia Cablevision of Santa Ana, LLC dba
Adelphia Cable Communications, a Delaware Limited Liability Company ("Grantee").
RECITALS:
A. Grantee currently operates and maintains a cable television system in the
City of Santa Ana under the authority of Sections 1300 !á~. of the Santa Ana City Charter,
Article II of Chapter 15 of the Santa Ana Municipal Code, entitled "Community Antenna
Television Systems," and Ordinance No. NS-1628, as adopted on May 3, 1982, which granted a
nonexclusive franchise to Group W. Cable, Inc., a New York corporation. The terms of that
nonexclusive franchise were set forth in that certain agreement dated June 21, 1982, entitled "An
Agreement between the City of Santa Ana and Group W Cable, Inc. to Use the Streets and
Public Ways within the City of Santa Ana for the Operation ofa Cable Television System for
Fifteen Years under Certain Terms and Conditions and Fixing an Effective Date." This
Agreement was later modified by a First Amendment to Agreement dated February 7, 1983, by a
Second Amendment to Agreement dated December 28, 1984, by a Third Amendment to
Franchise Agreement dated March 6, 1989, and by a Fourth Amendment to Cable Television
Franchise Agreement dated June 12, 2002.
B. Under the provisions of paragraph (d) of Section 13 of the Third
Amendment to Franchise Agreement dated March 6, 1989, the City consented to the transfer of
the cable television franchise from Group W Cable, Inc. to Comcast Cablevision of Santa Ana,
Inc., a Delaware corporation.
C. By letter dated January 31, 1997, and in accordance with Section 2.1
("Grant") of the Agreement, as amended by the Second Amendment to Agreement dated
December 28, 1984, the Grantee's predecessor-in-interest exercised its option to extend the
initial IS-year term of the franchise for an additional five years by giving written notice by
certified mail to the Grantor's City Manager. The Agreement, as previously extended by the
Fourth Amendment, is now scheduled to terminate at midnight on February 20, 2003.
D. In a transaction that was consummated on December 31, 2000, Comcast
Cablevision of Santa Ana, Inc. was converted to a Delaware limited liability company, and all of
the ownership interests in Comcast Cablevision of Santa Ana, LLC were transferred by its parent
corporation, Comcast Cablevision Corporation of California, to a wholly-owned subsidiary of
the ultimate parent corporation, Adelphia Communications Corporation. This transaction, which
involved a change of control, did not require the prior consent of the Grantor under Section 1300
of the Santa Ana City Charter.
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E. On February 15, 2001, a Certificate of Amendment to Certificate of
Formation was filed by Comcast Cablevision of Santa Ana, LLC with the Delaware Secretary of
State. This Certificate of Amendment changed the name of Comcast Cablevision of Santa Ana,
LLC to Adelphia Cablevision of Santa Ana, LLC.
F. On June 25, 2002, Grantee, as well as its parent company (Adelphia
Communications Corporation) and various affiliated entities, filed voluntary petitions to
reorganize under Chapter 11 of the US. Bankruptcy Code in the US. Bankruptcy Court for the
Southern District of New York. The debtors are currently operating their respective businesses
as debtors-in-possession.
G. Grantor and Grantee desire to enter into this Fifth Amendment for the
purpose of extending their respective rights and obligations under the Agreement for an
additional period of time, not to exceed eighteen months from its current termination date of
February 20,2003.
THE PARTIES AGREE AS FOLLOWS:
Section 1. Section 2.4 ("Duration") of Section 2 ("Grant of Franchise") of the
Agreement is amended in its entirety to read as follows:
"2.4 Duration. Notwithstanding any provisions to the contrary set forth in
this Agreement, the term of the franchise is extended for an additional
period of time not to exceed eighteen months from its current expiration
date of February 20,2003. The franchise will terminate upon the first to
occur of (i) the effective date of an agreement renewing the Cable
Television Franchise Agreement; or (ii) midnight on August 20, 2004.
Renewal, if any, will be in accordance with then applicable law."
Section 2. Except as modified in this Fifth Amendment, either expressly or by
necessary implication, the terms and conditions of the Agreement remain in full force and effect.
Both parties reserve all rights under applicable provisions of the Cable Act, including Sections
626 and 635. Nothing herein shall be deemed or construed as a waiver, release, or surrender of
any right that either party may have under the Cable Act or any other applicable law.
Section 3. Prior to the "Effective Date" of this Fifth Amendment, as that term is
defined below in Section 6, Grantee will provide to Grantor a written opinion from its
bankruptcy counsel to the effect that Grantee has the legal authority to enter into this Fifth
Amendment as an action taken in the ordinary course ofbusiness.
Section 4. Grantee's execution of this Fifth Amendment will not constitute either
an assumption or a rejection by Grantee of the Agreement, nor a waiver of Grantee's rights under
Section 365 of the US. Bankruptcy Code (11 US.C. §365). Adelphia will seek Bankruptcy
Court authority to assume the Franchise Agreement, as amended by the Resolution, on the earlier
of: (i) the date Adelphia or one of the other debtors and debtors in possession whose cases are
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jointly administered under Case No. 02-41729 (REG) (collectively, the "Debtors") file a motion
with the Bankruptcy Court to assume a substantial number of the franchise agreements to which
one or more of the Debtors is a party; or (ii) the date the Debtors file a joint plan of
reorganization with the Bankruptcy Court.
Section 5. This Fifth Amendment will be legally binding upon the Grantor and
Grantee from its "Effective Date," as specified in Section 6 below, and upon any assignee or
transferee of the Agreement that may hereafter be authorized by the Grantor.
Section 6. It is the intention of the parties that the Grantee will rlfst execute this
Fifth Amendment and then submit it to the Grantor. The Grantor's City Clerk will insert the
execution date in all counterparts of this Fifth Amendment, attest to the execution of those
counterparts by a duly authorized officer of the Grantor, and transmit one fully executed
counterpart to the Grantee. The "Effective Date" is the date on which this Fifth Amendment is
approved by Grantor's City Council.
TO EFFECTUATE TillS FIFTH AMENDMENT, each of the parties has caused
this Fifth Amendment to be signed by its duly authorized representative as of the date set forth
below each authorized signature.
[Signatures provided on next page]
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ATTEST ~
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City Clerk
"GRANTOR"
CITY OF SANTA ANA
By:
Date:
"GRANTEE"
ADELPillA CABLEVISION OF SANTA ANA,
LLC,
By:
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(Authorized Officer)
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(Title)
Date:
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APPROVED AS TO FORM:
Corporate Counsel
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