R-1049-02 RESOLUTION NO. 1049-02
A RESOLUTION OF THE VILLAGE COUNCIL OF
MIAMI SHORES VILLAGE, FLORIDA,
APPROVING THE CHANGE`OF CONTROL OF TCI
TKR OF SOUTH FLORIDA, INC., TO AT&T
COMCAST.
WHEREAS, TCI TKR of South Florida, Inc., ("Franchisee"), a subsidiary of
AT&T Broadband, LLC, is duly authorized to operate and maintain a cable system in
Miami Shores Village ("Village") pursuant to a franchise (the "Franchise") granted by
the Village; and
WHEREAS, pursuant to the Separation and Distribution Agreement between
AT&T Corp. ("AT&T") and AT&T Broadband Corp. and the Agreement and Plan of
Merger between AT&T and Comcast Corporation, a newly formed entity, AT&T
Comcast Corporation ("AT&T Comcast"), will assume ultimate parent company
ownership and control of the Franchisee (the "Transaction"); and
WHEREAS, on or about March 8, 2002, the Village received an FCC 394 and an
Application for Village consent by the Village Council to the proposed change of control
of the Franchisee; and
WHEREAS,pursuant to Ordinance No. 575-95 of the Village ("Ordinance") and
the franchise granted thereunder (the "Franchise Agreement"), no such change of control
may occur without prior approval of the Village Council of Miami Shores Village; and
WHEREAS, the Village has required that the Franchisee fulfill its obligations,
pursuant to the Ordinance and Franchise Agreement, and provide information on the
proposed transaction including details on the legal, financial, technical and other
qualifications of AT&T Comcast and on the potential impact of the transfer on service;
and
WHEREAS, under FCC Rules, 47 C.F.R. Section 76.502, the Village has 120
days plus any extensions thereto from the date of submission of a completed FCC Form
394, together with all exhibits, and any additional information required by the Franchise
Agreement or applicable state or local law, to act upon an application to sell, assign, or
otherwise transfer controlling ownership of a cable system; and
WHEREAS, Franchisee has represented to the Village that it has taken all actions
and implemented all practices necessary to insure that Franchisee is in compliance with
all applicable provisions of the Ordinance and Franchise Agreement; and
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WHEREAS, the Village has required written acceptance from. Franchisee and
written acceptance by AT&T Comcast of the terms and conditions of this Resolution as a
condition precedent to adoption of this Resolution (attached hereto as Exhibit A); and
WHEREAS, in the event the Transaction is not consummated by March 31, 2003
or does not reach final closure for any reason, or in the event such closure is reached on
terms substantially or materially different to the terms described in the FCC Form 394
and exhibits thereto, the approval granted in this Resolution shall be null and void unless
otherwise extended by agreement of the parties.
NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL
OF MIAMI SHORES VILLAGE, FLORIDA:
Section 1. The foregoing recitals are approved and incorporated herein by
reference.
Section 2. To the extent required, the Village hereby consents to the change
in ultimate control of the Franchisee.
Section 3. That the consent granted herein does not constitute and should not
be construed to constitute a waiver or release of any obligations of the Franchisee under
the applicable terms of the current Ordinance and Franchise Agreement.
Section 4. That the consent granted herein does not and should not be
construed to constitute a waiver of any right of the Village or Franchisee under applicable
law, including but not limited to, the applicable provisions of the Ordinance or the
Franchise Agreement; and further, this consent shall not prejudice the Village's rights
with respect to the enforcement, renewal or transfer of the Franchise Agreement, whether
the non-compliance arose before or after the Transaction.
Section 5. That the consent granted is conditioned upon execution of the (a)
Acknowledgment attached hereto as Exhibit A; (b) the letter agreement referencing
payment to the Village attached hereto as Exhibit B; and (c) the Performance Guaranty
Agreement in the form attached as Exhibit C.
Section 6. That this Resolution shall have the force and effect of continuing
the Franchise Agreement between the Franchisee and the Village (as the Franchise
Authority), to the extent consistent with the applicable provisions of the Ordinance, the
Franchise Agreement and Exhibits A, B. and C attached hereto.
Section 7. That the Village hereby reserves all of its rights pursuant to
Federal, State and including but not limited to, (a) the right to consider violations of the
Franchise by the Franchisee, either prior to or subsequent to the Transaction; (b) the
franchise transfer process, including but not limited to, the right to act upon any
application to sell, assign or otherwise transfer any interest in the Franchisee or the cable
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system; and (c) the enforcement of the applicable terms of the current Ordinance and the
Franchise Agreement.
Section 8. That the consent herein granted expressly does not waive and
expressly reserves to the Village its rights to fully exercise all applicable legal rights and
authority with regard to Franchisee in connection with any use of the Village's rights-of-
way not authorized by the Village, including but not limited to, levying fines or
instituting litigation for trespass and ejectment.
Section 9. That the consent herein granted is an express non-waiver and
reservation of the Village's rights and authority against Franchisee for any Franchise
violations that may exist, including but not limited to, those in connection with any
unauthorized use of Franchisee's facilities, by any entity in any way affiliated with
Franchisee, its affiliates, parent or subsidiary.
Section 10. That the consent granted herein is subject to AT&T Comcast
obtaining all required federal and state approvals, licenses, and permits required with
respect to the Transaction.
Section 11. This Resolution shall become effective upon the date of its
adoption herein.
PASSED AND ADOPTED THIS DAY O JU 002.
A avis, Mayor
ATTEST:
Barbara A. Fugazzi, CM
Village Clerk
APPROVED AS TO FORM.
Richard Sarafan,
Village Attorney
3
t
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RESOLUTION NO. 1049-02
A RESOLUTION OF THE VILLAGE COUNCIL OF
MIAMI SHORES VILLAGE, FLORIDA,
APPROVING THE CHANGE OF CONTROL OF TCI
TKR OF SOUTH FLORIDA, INC., TO AT&T
COMCAST.
WHEREAS, TCI TKR of South Florida, Inc., ("Franchisee"), a subsidiary of
AT&T Broadband, LLC, is duly authorized to operate and maintain a cable system in
Miami Shores Village ("Village") pursuant to a franchise (the "Franchise") granted by
the Village; and
WHEREAS, pursuant to the Separation and Distribution Agreement between
AT&T Corp. ("AT&T") and AT&T Broadband Corp. and the Agreement and Plan of
Merger between AT&T and Comcast Corporation, a newly formed entity, AT&T
Comcast Corporation ("AT&T Comcast"), will assume ultimate parent company
ownership and control of the Franchisee (the"Transaction"); and
WHEREAS, on or about March 8, 2002, the Village received an FCC 394 and an
Application for Village consent by the Village Council to the proposed change of control
of the Franchisee; and
WHEREAS,pursuant to Ordinance No. 575-95 of the Village ("Ordinance") and
the franchise granted thereunder (the "Franchise Agreement"), no such change of control
may occur without prior approval of the Village Council of Miami Shores Village; and
WHEREAS, the Village has required that the Franchisee fulfill its obligations,
pursuant to the Ordinance and Franchise Agreement, and provide information on the
proposed transaction including details on the legal, financial, technical and other
qualifications of AT&T Comcast and on the potential impact of the transfer on service;
and
WHEREAS, under FCC Rules, 47 C.F.R. Section 76.502, the Village has 120
days plus any extensions thereto from the date of submission of a completed FCC Form
394, together with all exhibits, and any additional information required by the Franchise
Agreement or applicable state or local law, to act upon an application to sell, assign, or
otherwise transfer controlling ownership of a cable system; and
WHEREAS, Franchisee has represented to the Village that it has taken all actions
and implemented all practices necessary to insure that Franchisee is in compliance with
all applicable provisions of the Ordinance and Franchise Agreement; and
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WHEREAS, the Village has required written acceptance from. Franchisee and
written acceptance by AT&T Comcast of the terms and conditions of this Resolution as a
condition precedent to adoption of this Resolution(attached hereto as Exhibit A); and
WHEREAS, in the event the Transaction is not consummated by March 31, 2003
or does not reach final closure for any reason, or in the event such closure is reached on
terms substantially or materially different to the terms described in the FCC Form 394
and exhibits thereto, the approval granted in this Resolution shall be null and void unless
otherwise extended by agreement.of the parties.
NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL
OF MIAMI SHORES VILLAGE,FLORIDA:
Section 1. The foregoing recitals are approved and incorporated herein by
reference.
Section 2. To the extent required, the Village hereby consents to the change
in ultimate control of the Franchisee.
Section 3. That the consent granted herein does not constitute and should not
be construed to constitute a waiver or release of any obligations of the Franchisee under
the applicable terms of the current Ordinance and Franchise Agreement.
Section 4. That the consent granted herein does not and should not be
construed to constitute a waiver of any right of the Village or Franchisee under applicable
law, including but not limited to, the applicable provisions of the Ordinance or the
Franchise Agreement; and further, this consent shall not prejudice the Village's rights
with respect to the enforcement, renewal or transfer of the Franchise Agreement, whether
the non-compliance arose before or after the Transaction.
Section 5. That the consent granted is conditioned upon execution of the (a)
Acknowledgment attached hereto as Exhibit A; (b) the letter agreement referencing
payment to the Village attached hereto as Exhibit B; and (c) the Performance Guaranty
Agreement in the form attached as Exhibit C.
Section 6. That this Resolution shall have the force and effect of continuing
the Franchise Agreement between the Franchisee and the Village (as the Franchise
Authority), to the extent consistent with the applicable provisions of the Ordinance, the
Franchise Agreement and Exhibits A, B, and C attached hereto.
Section 7. That the Village hereby reserves all of its rights pursuant to
Federal, State and including but not limited to, (a) the right to consider violations of the
Franchise by the Franchisee, either prior to or subsequent to the Transaction; (b) the
franchise transfer process, including but not limited to, the right to act upon any
application to sell, assign or otherwise transfer any interest in the Franchisee or the cable
2
system; and (c) the enforcement of the applicable terms of the current Ordinance and the
Franchise Agreement.
Section 8. That the consent herein granted expressly does not waive and
expressly reserves to the Village its rights to fully exercise all applicable legal rights and
authority with regard to Franchisee in connection with any use of the Village's rights-of-
way not authorized by the Village, including but not limited to, levying fines or
instituting litigation for trespass and ejectment.
Section 9. That the consent herein granted is an express non-waiver and
reservation of the Village's rights and authority against Franchisee for any Franchise
violations that may exist, including but not limited to, those in connection with any
unauthorized use of Franchisee's facilities, by any entity in any way affiliated with
Franchisee, its affiliates,parent or subsidiary.
Section 10. That the consent granted herein is subject to AT&T Comcast
obtaining all required federal and state approvals, licenses, and permits required with
respect to the Transaction.
Section 11. This Resolution shall become effective upon the date of its
adoption herein.
PASSED AND ADOPTED THIS DAY O 002. ,
A avis, Mayor
ATTEST:
Barbara A. Fugazzi, CM
Village Clerk
APPROVED AS TO FORM.
i
Richard Sarafan,
Village Attorney
3
EXHIBIT A
UNCONDITIONAL ACCEPTANCE
OF TERMS OF
RESOLUTION NO. 1049-02
BEFORE ME, appeared the undersigned authority who being duly sworn upon his oath deposes
and states that:
1. Affiants are, respectively, the Senior Vice President of AT&T Broadband, LLC
("AT&T Broadband") and the person authorized to execute this document on behalf of TCI TKR of
South Florida, Inc., (the "Franchisee") and the
of AT&T Comcast Corporation ("AT&T Comcast"), and the person
authorized to execute this document on behalf of AT&T Comcast, for the Change of Control of the
Franchisee, as set forth on the FCC Form 394 received by Miami Shores Village, Florida (the
"Village"), on or about March 8, 2002 (the"Change of Control").
2. Affiants are submitting this Affidavit as a condition precedent to the approval of the
Application for Change of Control of the Franchisee from AT&T Corp. to AT&T Comcast.
3. Franchisee affirms that it is and will continue to be bound by and shall assume all the
lawful and applicable terms and conditions of the cable television Ordinance 575-95 (the
"Ordinance"), the current franchise agreement between the Franchisee and the Village (the "Franchise
Agreement") and any lawful amendments and agreements related thereto (the Ordinance, Franchise
Agreement and such amendments and agreements are collectively referred to herein as the
"Franchise") and the Resolution of the Village Council of the Village approving the Change of Control
of the Franchisee from AT&T Corp.to AT&T Comcast.
4. AT&T Comcast hereby attests and acknowledges that the Change of Control will not
affect, diminish, impair or supercede the binding nature of the existing valid ordinances, resolutions
and agreements applicable to operation of the cable system in the Village, including but not limited to,
the Ordinance, Franchise Agreement and any guarantees provided herein.
5. Franchisee hereby acknowledges and agrees that the following issues concerning
Franchisee's compliance with the Ordinance and Franchise Agreement shall be resolved as set forth
herein:
A. Franchisee and AT&T Comcast recognize and acknowledge that the financial
qualifications of AT&T Comcast are an important and relevant consideration of the Village for the
evaluation of the proposed Change of Control, and in particular, the assurance that sufficient financial
resources are available to Franchisee to meet the obligations of the Franchisee under the terms of the
Franchise. Accordingly, Franchisee or AT&T Comcast represent or warrant as follows:
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(i) AT&T Comcast and Franchisee represent and warrant that the Change of
Control will not have any adverse financial effect on the System, such that Franchisee's financial
resources necessary to comply with the terms and conditions of the Franchise are adversely affected.
AT&T Comcast acknowledges and agrees that from and after the Change of Control it will not take
any action that prevents the Franchisee's full performance of the applicable provisions of the Franchise
and this Unconditional Acceptance.
(ii) Franchisee represents and warrants that after the Proposed Transaction,
Franchisee's financial resources will be such as shall enable it to maintain and operate the System in
compliance with all requirements of the Franchise.
(iii) Franchisee shall provide a Performance Guarantee Agreement in the form
attached hereto from TCI Development LLC
(iv) AT&T Comcast represents and warrants that the costs associated with the
Change of Control shall not result in any increase in subscriber rates. Nothing shall prohibit
Franchisee, however, from taking rate increases in the ordinary course of business in compliance with
local, state and federal laws that are not caused by the costs associated with the Change of Control.
B. (i) Franchisee hereby acknowledges and recognizes that the Ordinance sets forth
the requirement that the Franchisee shall develop written procedures for the investigation and
resolution of all subscribers or Village resident complaints, including, but not limited to those
regarding quality of service and equipment malfunction, and that such procedures shall be submitted
for the review and approval by the Village Manager. Notwithstanding the above, on or about
December 21, 2001, Franchisee distributed to its subscribers the AT&T Broadband Policies and
Practices (the "Policies"), which sets forth, in part, policies, complaint procedures and dispute
resolutions for its cable subscribers. Franchisee agrees that within thirty (30) days following adoption
of the Resolution, it will notify, in writing, all subscribers located within the Village that Section 10 of
the Policies has been withdrawn (as so amended by such withdrawal of Section 10, the "Amended
Policies").
(ii) The Village has reviewed the Amended Policies and, has found them acceptable
in accordance with the requirements of the Ordinance.
(iii) Franchisee hereby acknowledges that this Acceptance does not in any manner
diminish or impair the rights of the Village with respect to future violations and remedies available to
the Village under the Franchise Agreement or Ordinance and the Village hereby waives any liquidated
damages with respect to the alleged violation arising out of the Policies.
(iv) Franchisee hereby agrees that any future revisions of any and all customer
service standards or policies or any such new standards and policies shall be submitted to the Village
before distribution to subscribers as required by the applicable provisions of the Franchise.
(v) Franchisee agrees that in the event of a conflict between the Amended Policies
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and applicable law, the Franchise Agreement, the Ordinance and applicable law shall control over the
Amended Policies. Franchisee and the Village agree that their relationship is governed solely by the
Franchise Agreement and the Ordinance and that the Amended Policies do not apply to the Village.
C. (i) Franchisee hereby acknowledges and recognizes that the Ordinance sets forth
the requirement that the Franchisee shall develop written procedures for the investigation and
resolution of all subscribers or Village resident complaints, including, but not limited to those
regarding quality of service and equipment malfunction, and that such procedures shall be submitted
for the review and approval by the Village Manager. Notwithstanding the above, on or about May 21,
2001, Franchisee distributed to its subscribers AT&T Broadband's Risk Assessment and Deposit
Policy (the "Risk Assessment Policy"), which sets forth, in part, AT&T Broadband's intent to check
potential subscribers credit history and implement policies on subscriber security deposits. Franchisee
agrees that within thirty (30) days following adoption of the Resolution, it will notify, in writing, all
subscribers located within the Village that the Risk Assessment Policy has been amended to include
non-discriminatory language, as set forth on Attachment 1 hereto ( the "Amended Risk Assessment
Policy").
(ii) The Village has reviewed the Amended Risk Assessment Policy and has found it
acceptable in accordance with the requirements of the Ordinance.
(iii) Franchisee hereby acknowledges that this Acceptance does not in any manner
diminish or impair the rights of the Village with respect to future violations and remedies available to
the Village under the Franchise Agreement or Ordinance and the Village hereby waives any liquidated
damages with respect to the alleged violation arising out of the Risk Assessment Policy.
(iv) Franchisee hereby agrees that any future revisions of any customer service
standards and policies shall be submitted to the Village before distribution to subscribers as required
by the applicable provisions of the Ordinance.
(v) Franchisee agrees that in the event of a conflict between the Amended Risk
Assessment Policy and applicable law, the Franchise Agreement, the Ordinance and applicable law
shall control over the Amended Risk Assessment Policy. Franchisee and the Village agree that their
relationship is governed solely by the Franchise Agreement and the Ordinance and that the Amended
Risk Assessment Policy does not apply to the Village.
D. AT&T Broadband and certain of its affiliates and subsidiaries are the subject of a
current investigation and administrative inquiry by the Attorney General of the State of Florida that
may result in legal action against such entities. Franchisee agrees that it shall comply with all federal
and state law, including any decision by the Attorney General of the State of Florida with respect to
consumer protection and arising out of such investigation and inquiry. Franchisee further agrees that
by consenting to the Change of Control, the Village shall not have waived any rights it may have to
receive any benefits, for itself or for Franchisee's subscribers in the Village, that are determined to be
given by resolution of the Attorney General's investigation, whether through judicial decision,
administrative action, settlement or voluntary agreement ("Resolution"). To the extent that the
3
Resolution extends to other subscribers or municipalities in Florida, benefits as prescribed by the
Attorney General, resulting out of its current investigation, for such other subscribers or municipalities
shall automatically be made available to the Village or Franchisee's subscribers in the Village to the
extent that the Village or such subscribers have been subject to the same violations.
6. Franchisee shall cooperate in any franchise compliance inquiry, including but not
limited to financial, customer service performance, call center records and financial and technical
audits as specified under the terms and conditions of the Franchise. AT&T Comcast agrees that the
records of the Franchisee, which are required to be maintained and are subject to inspection by the
Village, pursuant to the Franchise, shall be subject to inspection regardless of whether such records
are maintained by Franchisee or AT&T Comcast, or any subsidiary or affiliate.
7. Franchisee agrees that the Village does not waive any right to require compliance with
the Franchise by Franchisee, whether or not any noncompliance is the subject of this Acceptance and
hereby assumes responsibility for any and all non-compliance under the current Franchise Agreement
and/or the Ordinance, even if such noncompliance is alleged to have occurred prior to the closing of
the merger of AT&T Broadband and Comcast Corporation.
8. This Exhibit A may be signed in counterparts.
FURTHER AFFIANT SAYETH NAUGHT.
TCI TKR OF SOUTH FLORIDA, INC.
By:
Name: .
Title:
STATE OF FLORIDA )
ss:
COUNTY OF aeayfA )
BEFORE ME, the undersigned authority, personally appeared i/kon Al'L/,O/fire ,
who is known to me personally ( proo —or—idennifrmtraTry and upon being first duly sworn
acknowledged thatU/she executed the foregoing document freely and voluntarily and for the purpose
therein expressed.
WITNESS my hand and official seal in the County and State last aforesaid this day of
VS 2002.
Notary Public
My Co 'ssion expires.
[4PAl A�e� AN L.LEFfIK
MY COMMISSION* DD 061734
4 0,rF EXPIRES:i nuery26,2006 g.NOTARY FL WMY SOM-&B—"'Me
e
AT&T COMCAST CORPORATION
By: "xt'—
Name:
Title:
STATE OF
ss:
COUNTY OF
BEFORE ME, the undersigned authority, personally appeared
who is known to me personally (or provided proof of identification) and upon being first duly sworn
acknowledged that he/she executed the foregoing document freely and voluntarily and for the purpose
therein expressed.
WITNESS my hand and official seal in the County and State last aforesaid this 2��day of
92002.
Notary Public
My Commission expires:
NOTARIAL SEAL
DEBORAH L.MOGEL,Notards" y Public
City of Philadelphia,Phiia.County
Commission Expires March 28,2005
5
AT&T Broadband's Risk Assessment and Deposit Policy
Effective May 28,2002
Starting May 28,2002,AT&T Broadband will implement a risk assessment and deposit program.
AT&T Broadband will conduct a risk assessment on all new or reconnecting customers. Customers requesting service
will be asked for their name,address and Social Security Number. (If a customer is unwilling to provide his or her Social
Security Number,we will attempt to match that person using only his or her name and address. AT&T Broadband's
inability to locate applicant information resulting from the customer's unwillingness to provide a Social Security number
may adversely affect the risk assessment). AT&T Broadband may utilize information available from credit reporting
agencies to make the risk assessment.
Based on our review,the customer may be required to provide a deposit to secure payment of his or her account. The
deposit levels have been set initially at$50.00 and$100.00. All customers who are required to pay a deposit will be sent
a letter, which will include information about our assessment and how to obtain additional information from any
consumer reporting agencies utilized, as well as the Terms on which AT&T Broadband will hold,apply and refund
deposits. The letter will be mailed within fifteen (15) business days following the deposit assessment. Detailed
information about the Terms will be available to customers during the sales call upon request.
AT&T Broadband shall not discriminate in the application of its Risk Assessment and Deposit Policy on the basis of
race,color,sex,creed,religion,nationality,sexual orientation,or marital status.Any credit checks conducted by either
AT&T Broadband or its third party credit bureau will be done in conformance with the requirements of all applicable
state or federal laws.
TERMS ON WHICH SECURITY DEPOSITS WILL BE HELD
AND APPLIED BY AT&T BROADBAND
If you have provided AT&T Broadband with a security deposit in connection with your subscription to cable television or
cable internet services,AT&T Broadband will hold your deposit in an unsegregated interest-bearing account as a general
liability of the company holding the local franchise to serve the area in which you reside. During each calendar year,the
account will accrue interest at a rate determined during the last week of the immediately preceding October equal to the
effective rate(the effective annual yield)for new issues of one year Treasury bills(or if there are no such new issues,a
representative average of the bid and asked yields for Treasury obligations having approximately one year remaining
until maturity),rounded to the nearest whole percentage. Interest on the deposit will be calculated monthly and credited
to your service account. The interest rate for 2002 is 2%.
The deposit will be held and interest will accrue until either(i)the service is disconnected or(ii)the balance charged to
the service account has been paid in full,within forty(40)days of the due date,for each six(6)consecutive months.
Upon either event,interest will be calculated and added to the amount on deposit. For active customers,the deposit and
accrued interest will then be applied to the account in the seventh month. Any remaining credit will be applied to the
account in the either month,unless customer requests a refund of the remaining deposit. For disconnecting customers,
the deposit and accrued interest will be applied to the balance,if any,owing on the account after any equipment has been
returned and any amount remaining on the deposit will be refunded. A check in the amount of the refund will be mailed
within 4-6 weeks of the date of(i)or(ii)above.
The interest rate on deposits that are held on January 1 of any calendar year will be adjusted to the new rate determined in
accordance with the first paragraph above.
If you have any questions regarding the status of your account or deposit,please call the Customer Service number shown
on your monthly statement.
EXHIBIT C
PERFORMANCE GUARANTY AGREEMENT
MIAMI SHORES VILLAGE, a municipal corporation of the State of Florida,
(hereinafter "Village"), and TCI DEVELOPMENT, LLC, a Delaware limited liability company
(hereinafter, "Guarantor") and wholly owned by AT&T Broadband, LLC, on behalf of itself and
Franchisee.
WHEREAS, TCI TKR of South Florida, Inc., d/b/a AT&T Broadband is the Franchisee
under a Franchise Agreement granted pursuant to Ordinance No. 575-95 and the documents
thereunder(collectively the"Franchise"); and
WHEREAS, at its meeting of July 16, 2002,the Village Council approved the Change in
Control of the Franchisee in adopting Resolution No. 1049-02 ("Change in Control"); and
WHEREAS, the Consent and Unconditional Acceptance of Change in Control of
Franchisee approved by Resolution No. 1049-02 requires Franchisee to furnish a Guaranty, with
an acceptable guarantor securing performance of Franchisee's obligations under the Miami
Shores Village cable television Ordinance No. 575-95 ("Ordinance"), Franchise Agreement and
any and all agreements related thereto; and
WHEREAS, Guarantor has agreed to deliver this Guaranty in conjunction with the
Village's consent to the Change in Control.
NOW, THEREFORE, in consideration of the above recitals, the covenants, and
agreements contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged,the Guarantor hereby agrees as follows:
1. The Guarantor, on behalf of itself and Franchisee, (a) guarantees unconditionally
to the Village the due and punctual performance by Franchisee of each and every term, promise,
covenant, condition, provision and obligation contained in the Franchise Agreement, the
Resolution approving the Change in Control, the Unconditional Acceptance, the Ordinance and
any and all related agreements and resolutions, except to the extent that any term, promise,
covenant, condition, provision or obligation is unenforceable under applicable law, and (b)
agrees to cause Franchisee to comply with all obligations of the "Grantee" (as defined in the
documents referenced herein) to be performed as provided in the Franchise Agreement and
Ordinance, except to the extent that any term, promise, covenant, condition, provision or
obligation is unenforceable under applicable law.
2. The guarantees set forth in paragraph 1 above shall be effective
contemporaneously with the Change in Control of the Franchisee and shall remain in effect until
the first to occur of, (a) the termination of the Franchise; or (b) the termination, substitution, or
1
cancellation of this Guaranty upon the Village's prior written approval of a substitute guarantor,
which approval shall not be unreasonably withheld.
3. Except as set forth in paragraph 2 above, no termination, amendment, waiver, or
modification of this Guaranty or any of its terms or provisions shall be effective unless it is set
forth in a written instrument signed by the Guarantor and the Village.
4. Guarantor covenants and agrees that Guarantor may be joined in any action by the
Franchisee or the Village and that recovery may be had against Guarantor in such action without
the Village first bringing an action in court against Franchisee. Guarantor also agrees that, in any
jurisdiction, it will be conclusively bound by the judgment in any such action by Village against
Franchisee (wherever brought) as if Guarantor were a party to such action, even though
Guarantor is not joined as a party in such action. This Guaranty may be enforced against
Guarantor pursuant to this Section 4 only upon a default by Franchisee; provided that Guarantor
is given prior notice of such breach or default and an opportunity to cure such breach or default
in accordance with the Franchise as if Guarantor was the Franchisee thereunder.
5. This Guaranty shall be deemed to have been made in the State of Florida.
Guarantor consents to the jurisdiction of the courts of the State of Florida or to the United States
District Court, Southern District, for the State of Florida. The rights and liabilities of Village and
Guarantor shall be determined in accordance with the laws of the State of Florida.
6. No delay on the part of the Village in exercising any power or right hereunder
shall operate as a waiver thereof. The powers and rights granted to Village hereunder may only
be waived upon the prior written consent of Village, authorized by appropriate municipal action
taken at a regular public meeting of the Village Council of Village.
7. If any section, subsection, sentence, clause, phrase, or other portion of this
Guaranty is, for any reason, declared invalid, in whole or in part, by any court, agency,
commission, legislative body, or other authority of competent jurisdiction, such portion shall be
deemed a separate, distinct, and independent portion, and such declaration shall not affect the
validity of the remaining portions hereof, which other portions shall continue in full force and
effect.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Guarantor on behalf of itself has caused this Guaranty to
be executed under seal by its duly authorized representative of the date first above written.
TCI DEVELOP NT LLC
0 1 (Guarantor)
o t.
o �� o By:
o a �
( rporate Seal" " Name: iCJtPL
Title: A a
vl
STS LORADO )
ss:
COUNTY OF ARAPAHOE )
EFORE ME the undersigned authority, personally appeared
who is known to me personally (or provided proof of
identification) and upon b ng first duly sworn acknowledged that he / she executed the
foregoing document freely and voluntarily and for the purpose therein expressed.
W TNESS my hand and official seal in the County and State last aforesaid this
day of ( _�'2002.
Notary Public
My Coipmission Expires:
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WITNESSES: AA MIAMI SHORES VILLAGE
Qmw �41
OTom Benton,Village Manager
ATTEST:
'VlC APPROVED AS TO FORM:
Barbara A. Fugazzi, m
Village Clerk Ej4c)&��—
Richard
Sarafan
Village Attorney
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