Loading...
Charter Communications Transfer Agreement TRANSFER AGREEMENT This agreement is made this ~day Of~'~999, by and between: 1.1.1. City of Gilroy, California, a [charter city/] ("City"); and 1.1.2. Falcon Holding Group, L.P. (FHGLP); and 1.1.3 Falcon Cable Communications, LLC (FCCLLC); and 1.1.4. Falcon Communications, L.P. ("FCLP"); and 1.1.5. Falcon Cable Systems Company II, L.P. ("Falcon" or "Franchisee"); and 1.1.6 Charter Communications, Inc. (CCI); and 1.1.7. Charter Communications Holding Company, LLC ("Charter" or "Transferee"); and 1.1.8 All of the above 1.1.2. - 1.1.7 may be referred to collectively as "the Companies." RECITALS WHEREAS, FCLP has agreed to an acquisition by Charter pursuant to a "Purchase and Contribution Agreement dated May 26, 1999 (the "Proposed Transaction"); and WHEREAS, Falcon, which is 99% owned by FCCLLC, which is 100% owned by FCLP, which is 53% owned by FHGLP and 47% owned by TCI (A TT), currently operates under the terms of a cable television Franchise Agreement (the "Franchise") granted by the City; and WHEREAS, the City Code provides that prior approval of the City is required before a franchise is sold, transferred or assigned in whole or in part, in any manner, including through a change in control of the person that owns or controls the Franchisee; and WHEREAS, on or about June 23, 1999, Charter and FCLP filed FCC Form 394 pursuant to the 1992 Cable Act and FCC regulations, and have requested that the City approve the application for a transfer of control of the Franchisee from FCLP to Charter (the "Application"); and WHEREAS, the City has substantial concerns with regard to, among other things, the past technical performance of Falcon and with regard to the quality of service provided to citizens and franchise compliance while it has held the Franchise; and WHEREAS, the City and Falcon have been engaged in an extended franchise renewal process which has resulted in a negotiated proposed renewal franchise ("Renewal Franchise"); and WHEREAS, the City is willing to act affirmatively on the Application so long as Charter agrees that it will be bound by all of the provisions, terms, conditions and limitations prescribed in both the current Franchise and the Renewal Franchise (Exhibit A), and all applicable federal, state, and local laws to the maximum extent required by law, and subject to conditions ensuring that the Companies representations are accurate as they may affect (1) the Companies' liability for past acts and omissions, and (2) the financial qualifications of Charter and its parent corporations; and . WHEREAS, relying on the representations of the Companies, the City is willing to grant its consent to the Application, as long as the Companies' representations are complete and accurate; and WHEREAS, Falcon and Charter have agreed to abide by the provisions, terms conditions, and limitations prescribed in the current Franchise and the negotiated renewal franchise and all applicable federal, state, and local laws to the maximum extent required by law, and subject to conditions ensuring that Charter's and Falcon's representations are accurate as they may affect (1) the Companies' liability for past acts and omissions, and (2) the financial qualifications of Charter and its parent corporation. NOW, THEREFORE, in consideration of the City's consent to the Application, and subject to the terms and conditions of this Agreement and of the City's Resolution granting conditional consent to the Application, THE PARTIES DO HEREBY AGREE as follows: 1. TRANSFER OF FRANCHISE 1.1. In consideration for the promises and performances of the Companies, as expressed elsewhere in this Transfer Agreement (Agreement), the City hereby consents to the 2 transfer of control of its Cable Television Franchise from FCLP to Charter as specified in the Application. 1.2. The City reserves all rights not expressly granted in this Agreement. In particular and without limitation: 1.2.1. Neither this Agreement, nor any other action or omission by the City at or before the execution of this Agreement, shall be construed to grant the City's consent to any future transfer of the Franchise and/or the cable system, and/or change in ownership and/or control of the Franchises and/or the cable system, or to mean that the City's consent to any future transaction is not required, except that Charter may: (a) restructure debt; (b) pledge or grant a security interest to any lender(s) of Charter's assets, including but not limited to, the franchise or interests in Charter, for purposes of securing an indebtedness, and; (c) sell capital stock of Charter, or any of Charter's affiliate companies in a transaction commonly known as an "initial public offering" without obtaining prior consent of the City; provided that Charter represents in writing to the City that any such transaction will not materially affect compliance with the Franchise Documents and that any affiliated Charter entity with an ownership interest in the Franchise shall fully comply with the terms of the Franchise Documents. Without limiting the foregoing, the approval of the Application does not itself authorize or permit Charter to lease or use the cable system to provide services other than cable services, or to install non- cable facilities, without obtaining the authorizations or approvals validly required by the City. 1.2.2. The City waives none of its rights with respect to Falcon's compliance with the terms, conditions, requirements and obligations set forth in the Franchise Documents ("Franchise Documents') which are hereinafter defined as the Franchise currently in force, the City Code as it may be amended from time to time, as well as those Transfer Agreements, Resolutions and Orders necessary to transfer ownership or control since the beginning of the Franchise terms including the City's right to compel Charter to comply with the Franchise Documents. 1.2.3. Falcon and Charter acknowledge and agree that the City is not, by approving the Application, agreeing that any past practice or course of conduct by Falcon, including its direct or indirect parent corporations or predecessors, complied with the Franchise Documents. 3 Falcon and Charter agree that the City is not deciding that either of them is financially, legally, or technically qualified to hold the Franchises; and the parties hereto agree that the City may and has properly reserved consideration of those issues to any renewal proceeding. 2. ACCEPTANCE OF FRANCHISE OBLIGATIONS 2.1. Compliance with Franchises - Franchisee agrees to fully comply with all of the terms and conditions set forth in the Franchise Documents. Charter agrees that it will not take any action, fail to take any action, or assert any claim or defense inconsistent with those obligations including, by way of example and not limitation, a claim that as a result of the Proposed Transaction, Charter, FCLP, FCCLLP, or Franchisee is relieved of liability for past acts or omissions. To the extent that any provisions of any document associated with the Proposed Transaction or approval of the Proposed Transaction between Charter and Franchisee (including but not limited to financing documents, mortgages and other instruments) conflicts with the Franchise Documents (other than the express provisions of this Agreement), the parties agree they are not approved, and the approval of the Application is subject to the condition that such provisions, if any, shall be of no force or effect with respect to the cable system serving the City. 2.2. Assumption of ObliQations - From and after the Transaction, Charter shall be jointly and severally liable with Franchisee for past acts and omissions of Franchisee and Charter shall be liable for the future acts and omissions of Franchisee or any of its direct and indirect parents and predecessors, known and unknown. Without limiting the foregoing, Charter hereby assumes joint and several liability for, and accepts the consequences of, any such acts and omissions, known and unknown, and assumes liability for any and all of Franchisee's (including its direct and indirect parents and predecessors, known and unknown) previously accrued but unfulfilled obligations to the City under the Franchise Documents, unless and until such obligations are expressly released by mutual agreement. The City's approval of the Application does not in any way release any obligation related to any past actions, omissions, practices, or system operations (including charges to subscribers) of Franchisee (or any of their direct and indirect parents or predecessors) or any obligation arising out of any failure to comply with California or federal law. The City may vindicate its rights by action brought against Franchisee and/or Charter, to the extent consistent with the assumptions of obligations in this paragraph. 2.3. Charter and Falcon acknowledge and agree that the consent to the Application is 4 made in reliance upon the representations, documents, and information provided by Charter and Falcon in connection with the Proposed Transaction, all of which are incorporated into this Agreement by this reference. Without limiting the foregoing, the Companies have warranted that the City may rely on the Form 394 submitted to the City in connection with the Proposed Transaction. The Companies represent and warrant that: (1) the Proposed Transaction will not materially adversely affect the costs of the entity holding the Franchise, so that the Franchisee's ability to satisfy the cable-related needs and interests of the City will not be affected; (2) there is nothing in any agreement related to the Proposed Transaction that would prevent or in any way inhibit Franchisee or Charter from agreeing to a renewal franchise, or from settling past compliance issues as proposed by the City. 3. ADDITIONAL CONDITIONS 3.1. In the event the transaction described in the Form 394: (a) does not close; (b) does not close before December 31, 1999; or (c) closes on terms that are in any material respect different from the terms disclosed to the City in writing, then this Agreement and any City consent to the Application shall be void and of no force or effect, and the Application deemed to have been timely denied; provided that nothing herein shall prevent the City, upon a request from Falcon or Charter, from granting an extension beyond December 31, 1999. 3.2. The Companies hereby waive any and all claims that they may have that any denial of the Application that results from this Section 3 fails to satisfy the deadlines established by applicable law including, without limitation, claims based on, arising out of, or relating to 47 USC ~537, as amended, and agree that they shall be deemed to have agreed to an extension of time to act on the Application as required to make any denial effective. 3.3. The Companies represent and warrant that the Proposed Transaction will not result in the City's cable system having responsibility for any additional debt, in any respect that would adversely affect the financial position of Franchisee including any affect on the future cable-related needs and interests of the community. 3.4 CCI and Charter agree that they will not enter into any arrangement which would result in the transfer of ownership or control of the cable system from Charter, or result in a transfer, without obtaining the prior approval of the City if approval is required by the Franchise 5 Documents. Further, any transferee or new controlling entity must become a party to the Franchise as required by the Franchise Documents. 3.5 Franchisee and Charter agree to abide by the provisions, terms conditions, and limitations prescribed in the current Franchise. As a condition of the approval of this Transfer Application, the parties to this Agreement agree to adopt and abide by the provisions, terms, conditions, and limitations prescribed in the negotiated renewal franchise (Exhibit A) and agree that the City has conducted the franchise renewal process consistent with all applicable Federal, state, and local law. 3.6. Upon invoice by the City, Falcon agrees that it shall within 30 days of the invoice reimburse the City for all reasonable, direct, out of pocket costs the City incurred in analyzing and acting upon the Application. The reimbursement amount to be paid by Falcon shall not exceed a total of $15,000 for the Cities of Gilroy, Hollister, and San Juan Bautista. 4. RATES 4.1 The Franchisee and Charter agree that the Proposed Transaction will not result in any increase in the rates for basic cable service and the Franchisee and Charter will not rely upon an increase in debt service or in debt service coverage, if any, that results from the proposed Transaction, to justify an increase in rates for cable services. 4.2 No expenses incurred or amounts expended by the Companies in connection with the Proposed Transaction, including any such expenditures to comply with the terms of this Agreement, may be passed through to subscribers to the system in any form, or itemized on subscriber bills. 5. REPRESENTATIONS AND WARRANTIES 5.1 Each of the Companies hereby represent and warrant that at the time of the execution of this Agreement: (a) they are duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized; (b) the Franchise Documents and, assuming due execution hereof by the other parties hereto, this Agreement constitute legal, valid and binding obligations of such company enforceable in accordance with their terms to the maximum extent required by law, provided it is understood no party waives its right to 6 object to any term inconsistent with applicable law; (c) the execution and delivery of, and performance by such company under, this 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's partnership agreement, charter, bylaws, and/or other organizational documents; and (d) the execution and delivery of this Agreement does not contravene, result in a breach of, or constitute a default under, any contract or agreement to which any of them is a party or by which any of them or any of their properties may be bound (nor would such execution and delivery constitute such a default with the passage of time or the giving of notice or both), and does not violate or contravene any law, order, decree, rule, regulation or restriction to which any of them is subject. 5.2 The Companies represent and warrant that they are not asserting that the Franchisee or Charter will be permitted to provide services in addition to cable services as a result of the approval of the Application. 5.3 Charter Communications, Inc. agrees that, from and after the consummation of the Proposed Transaction, it will not take any action to cause Charter or the Franchisee to fail to fully comply with all of the lawful terms and conditions set forth in the Franchise Documents and (when executed and delivered) this Agreement. To the extent that any provisions of any document associated with the Proposed Transaction, or any other contract, conflicts with the lawful provisions of the Franchise Documents, this Agreement or applicable federal, state or local laws, the parties agree they are not approved, and the Application is subject to the condition that such provisions, if any, shall be of no force or effect with respect to the System serving the City. 5.4. The Companies acknowledge and agree that the City's consent to the Application is made in reliance upon the representations, documents, and information provided by Charter and FCLP in connection with the Application. The Companies are jointly and severably liable for their representations and warranties; and that the representations and warranties include, without limitation the following: 7 5.4.1. Charter and Franchisee agree to comply with all lawful Federal, State, and local requirements with respect to nondiscriminatory access to Falcon's cable modem platform for providers of Internet access service provided however, that prior to the enactment or enforcement of any such requirement by the City, Franchisee shall be provided with reasonable notice and an opportunity to be heard including the right to present evidence on any findings made or required to be made by the City with respect to such a requirement. Further, Charter agrees that should it or any direct or indirect parent corporation, enter into any agreement with a franchising authority that requires the provision of non-discriminatory access to its cable modem platform for providers of Internet access services, then the same contractual provision will be made available upon the City's request in these Franchises upon equivalent terms and conditions. 5.4.2. Charter agrees that personally identifiable subscriber information as that term is used in 47 USC Section 551 will be used only in accordance with the provisions of the Cable Communications Policy Act of 1984, as amended by the Telecommunications Act of 1996. 5.4.3. Charter agrees that any consolidation of its customer service functions under itself or any parent company will not in any way interfere with Franchisee's compliance with the customer service requirements of the Franchise. 5.4.4. Charter and Franchisee agree that additional transfers of ownership or control of this Franchise would be a disproportionate burden upon the City. Charter agrees, therefore, to guarantee and assume liability for all reasonable costs incurred by the City in analyzing and acting upon any transfer application filed within 36 months of the closure of the Proposed Transaction. 5.4.5. Charter and Falcon agree to indemnify and hold the City harmless against any loss, claim, damage, liability or expense (including, without limitation, reasonable attorneys' fees) proximately caused by any representation or warranty made by that any Company herein which proves to be untrue or inaccurate in any material respect. 8 5.4.6. Charter and Falcon agree that any content enhanced residential Internet service it may provide constitutes a cable service within the meaning of 47 USC Section 522 unless and until the FCC by final order or a court of competent jurisdiction finds that residential Internet access provided over a cable system is not a cable service. Revenues received by Falcon or any other Cable Operator of the Cable System from the provision of content enhanced residential Internet service over the Cable System as a cable service shall be included within gross revenues for the purpose of the franchise fee calculation. 6. MISCELLANEOUS PROVISIONS 6.1. Effective Date: This Agreement shall be effective and binding upon the signatories once it has been signed by all signatories, subject to any conditions contained herein 6.2. Entire Aoreement: This Agreement constitutes the entire agreement of the parties with respect to the settlement of the matters addressed herein. No statements, promises or inducements inconsistent with this Agreement made by any party shall be valid or binding, unless in writing and executed by all parties. This Agreement may only be modified by written amendments hereto signed by all parties. 6.3 Breach: A material breach of this Agreement shall be deemed a material breach of the Franchise. 6.4 Bindino Acceptance: This 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 Agreement is void without the express written consent of the signatories. 6.5 Voluntary Aoreement: This 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 Agreement. 9 6.6. Severability: If any term, condition, or provision of this Agreement shall, to any extent, be held to be invalid, preempted, or unenforceable, the remainder shall be valid in all other respects and continue to be effective. 6.7. Counterparts: This 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 counterparts. 6.8. GoverninQ Law: This Agreement shall be governed in all respects by the law of the State of California. 6.9. Time of Essence: In determining whether a party has substantially complied with this Agreement, the parties agree that time is of the essence. 6.10. Captions and References: The captions and headings of sections throughout this Agreement are intended solely to facilitate reading and reference to the sections and provisions of this Agreement. Such captions shall not affect the meaning or interpretation of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Transfer Agreement as of the day and year first above written. .- ~ " 'I '-.... ~~, City Clerk thereof 10 FALCON CABLE SYSTEMS COMPANY II, L.P. a California limited partnership By: Falcon Cable Communications, LLC, a Delaware limited liability company, its general partner By: [Name, Title] FALCON CABLE COMMUNICATIONS, LLC, a Delaware limited liability company By: [Name, Title] FALCON COMMUNICATIONS, L.P., a California limited partnership By: Falcon Holding Group, L.P., a Delaware limited partnership its managing general partner By: Falcon Holding Group, Inc., a California corporation, its general partner By: [Name, Title] FALCON HOLDING GROUP, L.P., a Delaware limited partnership By: Falcon Holding Group, Inc., a California corporation, its general partner By: [Name, Title] 11 CHARTER COMMUNICATIONS COMPANY, L.L.C. By: Title: HOLDING CHARTER COMMUNICATIONS, INC. By: Title: ~OVED AS TO FORM: ~C/~ City Attorney 12 TRANSFER AGREEMENT This agreement is made this _ day of October, 1999, by and between: 1.1.1. City of Gilroy, California, a [charter city/] ("City"); and 1.1.2. Falcon Holding Group, L.P. (FHGLP); and 1.1.3 Falcon Cable Communications, LLC (FCCLLC); and 1.1.4. Falcon Communications, L.P. ("FCLP"); and 1.1.5. Falcon Cable Systems Company II, L.P. ("Falcon" or "Franchisee"); and 1.1.6 Charter Communications, Inc. (CCI); and 1.1.7. Charter Communications Holding Company, LLC ("Charter" or "Transferee"); and 1.1.8 All of the above 1.1.2. - 1.1.7 may be referred to collectively as "the Companies." RECITALS WHEREAS, FCLP has agreed to an acquisition by Charter pursuant to a "Purchase and Contribution Agreement dated May 26, 1999 (the "Proposed Transaction"); and WHEREAS, Falcon, which is 99% owned by FCCLLC, which is 100% owned by FCLP, which is 53% owned by FHGLP and 47% owned by TCI (ATT) , currently operates under the terms of a cable television Franchise Agreement (the "Franchise") granted by the City; and WHEREAS, the City Code provides that prior approval of the City is required before a franchise is sold, transferred or assigned in whole or in part, in any manner, including through a change in control of the person that owns or controls the Franchisee; and WHEREAS, on or about June 23, 1999, Charter and FCLP filed FCC Form 394 pursuant to the 1992 Cable Act and FCC regulations, and have requested that the City approve the application for a transfer of control of the Franchisee from FCLP to Charter (the "Application"); and WHEREAS, the City has substantial concerns with regard to, among other things, the past technical performance of Falcon and with regard to the quality of service provided to citizens and franchise compliance while it has held the Franchise; and WHEREAS, the City and Falcon have been engaged in an extended franchise renewal process which has resulted in a negotiated proposed renewal franchise ("Renewal Franchise"); and WHEREAS, the City is willing to act affirmatively on the Application so long as Charter agrees that it will be bound by all of the provisions, terms, conditions and limitations prescribed in both the current Franchise and the Renewal Franchise (Exhibit A), and all applicable federal, state, and local laws to the maximum extent required by law, and subject to conditions ensuring that the Companies representations are accurate as they may affect (1) the Companies' liability for past acts and omissions, and (2) the financial qualifications of Charter and its parent corporations; and WHEREAS, relying on the representations of the Companies, the City is willing to grant its consent to the Application, as long as the Companies' representations are complete and accurate; and WHEREAS, Falcon and Charter have agreed to abide by the provisions, terms conditions, and limitations prescribed in the current Franchise and the negotiated renewal franchise and all applicable federal, state, and local laws to the maximum extent required by law, and subject to conditions ensuring that Charter's and Falcon's representations are accurate as they may affect (1) the Companies' liability for past acts and omissions, and (2) the financial qualifications of Charter and its parent corporation. NOW, THEREFORE, in consideration of the City's consent to the Application, and subject to the terms and conditions of this Agreement and of the City's Resolution granting conditional consent to the Application, THE PARTIES DO HEREBY AGREE as follows: 1. TRANSFER OF FRANCHISE 1.1. In consideration for the promises and performances of the Companies, as expressed elsewhere in this Transfer Agreement (Agreement), the City hereby consents to the transfer of control of its Cable Television Franchise from FCLP to Charter as specified in the Application. 2 1.2. The City reserves all rights not expressly granted in this Agreement. In particular and without limitation: 1.2.1. Neither this Agreement, nor any other action or omission by the City at or before the execution of this Agreement, shall be construed to grant the City's consent to any future transfer of the Franchise and/or the cable system, and/or change in ownership and/or control of the Franchises and/or the cable system, or to mean that the City's consent to any future transaction is not required, except that Charter may: (a) restructure debt; (b) pledge or grant a security interest to any lender(s) of Charter's assets, including but not limited to, the franchise or interests in Charter, for purposes of securing an indebtedness, and; (c) sell capital stock of Charter, or any of Charter's affiliate companies in a transaction commonly known as an "initial public offering" without obtaining prior consent of the City; provided that Charter represents in writing to the City that any such transaction will not materially affect compliance with the Franchise Documents and that any affiliated Charter entity with an ownership interest in the Franchise shall fully comply with the terms of the Franchise Documents. Without limiting the foregoing, the approval of the Application does not itself authorize or permit Charter to lease or use the cable system to provide services other than cable services, or to install non-cable facilities, without obtaining the authorizations or approvals validly required by the City. 1.2.2. The City waives none of its rights with respect to Falcon's compliance with the terms, conditions, requirements and obligations set forth in the Franchise Documents ("Franchise Documents') which are hereinafter defined as the Franchise currently in force, the City Code as it may be amended from time to time, as well as those Transfer Agreements, Resolutions and Orders necessary to transfer ownership or control since the beginning of the Franchise terms including the City's right to compel Charter to comply with the Franchise Documents. 1.2.3. Falcon and Charter acknowledge and agree that the City is not, by approving the Application, agreeing that any past practice or course of conduct by Falcon, including its direct or indirect parent corporations or predecessors, complied with the Franchise Documents. Falcon and Charter agree that the City is not deciding that either of them is financially, legally, or technically qualified to hold the Franchises; and the parties hereto agree that the City may and has properly reserved consideration of those issues to any renewal proceeding. 3 2. ACCEPTANCE OF FRANCHISE OBLIGATIONS 2.1. Compliance with Franchises - Franchisee agrees to fully comply with all of the terms and conditions set forth in the Franchise Documents. Charter agrees that it will not take any action, fail to take any action, or assert any claim or defense inconsistent with those obligations including, by way of example and not limitation, a claim that as a result of the Proposed Transaction, Charter, FCLP, FCCLLP, or Franchisee is relieved of liability for past acts or omissions. To the extent that any provisions of any document associated with the Proposed Transaction or approval of the Proposed Transaction between Charter and Franchisee (including but not limited to financing documents, mortgages and other instruments) conflicts with the Franchise Documents (other than the express provisions of this Agreement), the parties agree they are not approved, and the approval of the Application is subject to the condition that such provisions, if any, shall be of no force or effect with respect to the cable system serving the City. 2.2. Assumption of Obligations - From and after the Transaction, Charter shall be jointly and severally liable with Franchisee for past acts and omissions of Franchisee and Charter shall be liable for the future acts and omissions of Franchisee or any of its direct and indirect parents and predecessors, known and unknown. Without limiting the foregoing, Charter hereby assumes joint and several liability for, and accepts the consequences of, any such acts and omissions, known and unknown, and assumes liability for any and all of Franchisee's (including its direct and indirect parents and predecessors, known and unknown) previously accrued but unfulfilled obligations to the City under the Franchise Documents, unless and until such obligations are expressly released by mutual agreement. The City's approval of the Application does not in any way release any obligation related to any past actions, omissions, practices, or system operations (including charges to subscribers) of Franchisee (or any of their direct and indirect parents or predecessors) or any obligation arising out of any failure to comply with California or federal law. The City may vindicate its rights by action brought against Franchisee and/or Charter, to the extent consistent with the assumptions of obligations in this paragraph. 2.3. Charter and Falcon acknowledge and agree that the consent to the Application is made in reliance upon the representations, documents, and information provided by Charter and Falcon in connection with the Proposed Transaction, all of which are incorporated into this Agreement by this reference. Without limiting the foregoing, the Companies have warranted that the City may rely on the Form 394 submitted to the City in connection with the Proposed Transaction. The Companies represent and warrant that: (1) the Proposed Transaction will not 4 materially adversely affect the costs of the entity holding the Franchise, so that the Franchisee's ability to satisfy the cable-related needs and interests of the City will not be affected; (2) there is nothing in any agreement related to the Proposed Transaction that would prevent or in any way inhibit Franchisee or Charter from agreeing to a renewal franchise, or from settling past compliance issues as proposed by the City. 3. ADDITIONAL CONDITIONS 3.1. In the event the transaction described in the Form 394: (a) does not close; (b) does not close before December 31, 1999; or (c) closes on terms that are in any material respect different from the terms disclosed to the City in writing, then this Agreement and any City consent to the Application shall be void and of no force or effect, and the Application deemed to have been timely denied; provided that nothing herein shall prevent the City, upon a request from Falcon or Charter, from granting an extension beyond December 31, 1999. 3.2. The Companies hereby waive any and all claims that they may have that any denial of the Application that results from this Section 3 fails to satisfy the deadlines established by applicable law including, without limitation, claims based on, arising out of, or relating to 47 USC 9537, as amended, and agree that they shall be deemed to have agreed to an extension of time to act on the Application as required to make any denial effective. 3.3. The Companies represent and warrant that the Proposed Transaction will not result in the City's cable system having responsibility for any additional debt, in any respect that would adversely affect the financial position of Franchisee including any affect on the future cable-related needs and interests of the community. 3.4 CCI and Charter agree that they will not enter into any arrangement which would result in the transfer of ownership or control of the cable system from Charter, or result in a transfer, without obtaining the prior approval of the City if approval is required by the Franchise Documents. Further, any transferee or new controlling entity must become a party to the Franchise as required by the Franchise Documents. 3.5 Franchisee and Charter agree to abide by the provisions, terms conditions, and limitations prescribed in the current Franchise. As a condition of the approval of this Transfer Application, the parties to this Agreement agree to adopt and abide by the provisions, terms, 5 conditions, and limitations prescribed in the negotiated renewal franchise (Exhibit A) and agree that the City has conducted the franchise renewal process consistent with all applicable Federal, state, and local law. 3.6. Upon invoice by the City, Falcon agrees that it shall within 30 days of the invoice reimburse the City for all reasonable, direct, out of pocket costs the City incurred in analyzing and acting upon the Application. The reimbursement amount to be paid by Falcon shall not exceed a total of $15,000 for the Cities of Gilroy, Hollister, and San Juan Bautista. 4. RATES 4.1 The Franchisee and Charter agree that the Proposed Transaction will not result in any increase in the rates for basic cable service and the Franchisee and Charter will not rely upon an increase in debt service or in debt service coverage, if any, that results from the proposed Transaction, to justify an increase in rates for cable services. 4.2 No expenses incurred or amounts expended by the Companies in connection with the Proposed Transaction, including any such expenditures to comply with the terms of this Agreement, may be passed through to subscribers to the system in any form, or itemized on subscriber bills. 5. REPRESENTATIONS AND WARRANTIES 5.1 Each of the Companies hereby represent and warrant that at the time of the execution of this Agreement: (a) they are duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized; (b) the Franchise Documents and, assuming due execution hereof by the other parties hereto, this Agreement constitute legal, valid and binding obligations of such company enforceable in accordance with their terms to the maximum extent required by law, provided it is understood no party waives its right to object to any term inconsistent with applicable law; (c) the execution and delivery of, and performance by such company under, this 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's partnership agreement, charter, bylaws, and/or other organizational documents; and (d) the execution and delivery of this Agreement does not contravene, result in a breach of, or constitute a default under, any contract or agreement to which any of them is a 6 party or by which any of them or any of their properties may be bound (nor would such execution and delivery constitute such a default with the passage of time or the giving of notice or both), and does not violate or contravene any law, order, decree, rule, regulation or restriction to which any of them is subject. 5.2 The Companies represent and warrant that they are not asserting that the Franchisee or Charter will be permitted to provide services in addition to cable services as a result of the approval of the Application. 5.3 Charter Communications, Inc. agrees that, from and after the consummation of the Proposed Transaction, it will not take any action to cause Charter or the Franchisee to fail to fully comply with all of the lawful terms and conditions set forth in the Franchise Documents and (when executed and delivered) this Agreement. To the extent that any provisions of any document associated with the Proposed Transaction, or any other contract, conflicts with the lawful provisions of the Franchise Documents, this Agreement or applicable federal, state or local laws, the parties agree they are not approved, and the Application is subject to the condition that such provisions, if any, shall be of no force or effect with respect to the System serving the City. 5.4. The Companies acknowledge and agree that the City's consent to the Application is made in reliance upon the representations, documents, and information provided by Charter and FCLP in connection with the Application. The Companies are jointly and severably liable for their representations and warranties; and that the representations and warranties include, without limitation the following: 5.4.1. Charter and Franchisee agree to comply with all lawful Federal, State, and local requirements with respect to nondiscriminatory access to Falcon's cable modem platform for providers of Internet access service provided however, that prior to the enactment or enforcement of any such requirement by the City, Franchisee shall be provided with reasonable notice and an opportunity to be heard including the right to present evidence on any findings made or required to be made by the City with respect to such a requirement. Further, Charter agrees that should it or any direct or indirect parent corporation, enter into any agreement with a franchising authority that requires the provision of non-discriminatory access to its cable modem platform for providers of Internet access services, then the same contractual 7 provision will be made available upon the City's request in these Franchises upon equivalent terms and conditions. 5.4.2. Charter agrees that personally identifiable subscriber information as that term is used in 47 USC Section 551 will be used only in accordance with the provisions of the Cable Communications Policy Act of 1984, as amended by the Telecommunications Act of 1996. 5.4.3. Charter agrees that any consolidation of its customer service functions under itself or any parent company will not in any way interfere with Franchisee's compliance with the customer service requirements of the Franchise. 5.4.4. Charter and Franchisee agree that additional transfers of ownership or control of this Franchise would be a disproportionate burden upon the City. Charter agrees, therefore, to guarantee and assume liability for all reasonable costs incurred by the City in analyzing and acting upon any transfer application filed within 36 months of the closure of the Proposed Transaction. 5.4.5. Charter and Falcon agree to indemnify and hold the City harmless against any loss, claim, damage, liability or expense (including, without limitation, reasonable attorneys' fees) proximately caused by any representation or warranty made by that any Company herein which proves to be untrue or inaccurate in any material respect. 5.4.6. Charter and Falcon agree that any content enhanced residential Internet service it may provide constitutes a cable service within the meaning of 47 USC Section 522 unless and until the FCC by final order or a court of competent jurisdiction finds that residential Internet access provided over a cable system is not a cable service. Revenues received by Falcon or any other Cable Operator of the Cable System from the provision of content enhanced residential Internet service over the Cable System as a cable service shall be included within gross revenues for the purpose of the franchise fee calculation. 6. MISCELLANEOUS PROVISIONS 8 6.1. Effective Date: This Agreement shall be effective and binding upon the signatories once it has been signed by all signatories, subject to any conditions contained herein 6.2. Entire Agreement: This Agreement constitutes the entire agreement of the parties with respect to the settlement of the matters addressed herein. No statements, promises or inducements inconsistent with this Agreement made by any party shall be valid or binding, unless in writing and executed by all parties. This Agreement may only be modified by written amendments hereto signed by all parties. 6.3 Breach: A material breach of this Agreement shall be deemed a material breach of the Franchise. 6.4 Binding Acceptance: This 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 Agreement is void without the express written consent of the signatories. 6.5 Voluntary Agreement: This 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 Agreement. 6.6. Severabilitv: If any term, condition, or provision of this Agreement shall, to any extent, be held to be invalid, preempted, or unenforceable, the remainder shall be valid in all other respects and continue to be effective. 6.7. Counterparts: This 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 counterparts. 6.8. Governing Law: This Agreement shall be governed in all respects by the law of the State of California. 9 6.9. Time of Essence: In determining whether a party has substantially complied with this Agreement, the parties agree that time is of the essence. 6.10. Captions and References: The captions and headings of sections throughout this Agreement are intended solely to facilitate reading and reference to the sections and provisions of this Agreement. Such captions shall not affect the meaning or interpretation of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Transfer Agreement as of the day and year first above written. APPROVED: City of Gilroy ATTEST: City Clerk thereof FALCON CABLE SYSTEMS COMPANY II, L.P. a California limited partnership By: Falcon Cable Communications, LLC, a Delaware limited liability company, its general partner ~ By: Q~ tf'2' [Name, Title] ..- FALCON CABLE COMMUNICATIONS, LLC, a Delaware limited liability company B~~~~(). [Name, Title 10 FALCON COMMUNICATIONS, L.P., a California limited partnership By: Falcon Holding Group, L.P., a Delaware limited partnership its managing general partner By: Falcon Holding Group, Inc., a California corporation, its general partner By:c::9(~~A ~ ,9 [Name, Title] FALCON HOLDING GROUP, L.P., a Delaware limited partnership By: Falcon Holding Group, Inc., a California corporation, its general partner BY~~~~P ~, Title] - CHARTER COMMUNICATIONS COMPANY, L.L.C. By: Title: CHARTER COMMUNICATIONS, INC. By: Title: APPROVED AS TO FORM: City Attorney 11 HOLDING TRANSFER AGREEMENT This agreement is made this _ day of October, 1999, by and between: 1.1.1. City of Gilroy, California, a [charter city!] ("City"); and 1.1.2. Falcon Holding Group, L.P. (FHGLP); and 1.1.3 Falcon Cable Communications, LLC (FCCLLC); and 1.1.4. Falcon Communications, L.P. ("FCLP"); and 1.1.5. Falcon Cable Systems Company II, L.P. ("Falcon" or "Franchisee"); and 1.1.6 Charter Communications, Inc. (CCI); and 1.1.7. Charter Communications Holding Company, LLC ("Charter" or "Transferee"); and 1.1.8 All of the above 1.1.2. - 1.1.7 may be referred to collectively as "the Companies." RECITALS WHEREAS, FCLP has agreed to an acquisition by Charter pursuant to a "Purchase and Contribution Agreement dated May 26, 1999 (the "Proposed Transaction"); and WHEREAS, Falcon, which is 99% owned by FCCLLC, which is 100% owned by FCLP, which is 53% owned by FHGLP and 47% owned by TCI (ATT), currently operates under the terms of a cable television Franchise Agreement (the "Franchise") granted by the City; and WHEREAS, the City Code provides that prior approval of the City is required before a franchise is sold, transferred or assigned in whole or in part, in any manner, including through a change in control of the person that owns or controls the Franchisee; and WHEREAS, on or about June 23, 1999, Charter and FCLP filed FCC Form 394 pursuant to the 1992 Cable Act and FCC regulations, and have requested that the City approve the application for a transfer of control of the Franchisee from FCLP to Charter (the "Application"); and WHEREAS, the City has substantial concerns with regard to, among other things, the past technical performance of Falcon and with regard to the quality of service provided to citizens and franchise compliance while it has held the Franchise; and WHEREAS, the City and Falcon have been engaged in an extended franchise renewal process which has resulted in a negotiated proposed renewal franchise ("Renewal Franchise"); and WHEREAS, the City is willing to act affirmatively on the Application so long as Charter agrees that it will be bound by all of the provisions, terms, conditions and limitations prescribed in both the current Franchise and the Renewal Franchise (Exhibit A), and all applicable federal, state, and local laws to the maximum extent required by law, and subject to conditions ensuring that the Companies representations are accurate as they may affect (1) the Companies' liability for past acts and omissions, and (2) the financial qualifications of Charter and its parent corporations; and WHEREAS, relying on the representations of the Companies, the City is willing to grant its consent to the Application, as long as the Companies' representations are complete and accurate; and WHEREAS, Falcon and Charter have agreed to abide by the provISions, terms conditions, and limitations prescribed in the current Franchise and the negotiated renewal franchise and all applicable federal, state, and local laws to the maximum extent required by law, and subject to conditions ensuring that Charter's and Falcon's representations are accurate as they may affect (1) the Companies' liability for past acts and omissions, and (2) the financial qualifications of Charter and its parent corporation. NOW, THEREFORE, in consideration of the City's consent to the Application, and subject to the terms and conditions of this Agreement and of the City's Resolution granting conditional consent to the Application, THE PARTIES DO HEREBY AGREE as follows: 1. TRANSFER OF FRANCHISE 1.1. In consideration for the promises and performances of the Companies, as expressed elsewhere in this Transfer Agreement (Agreement), the City hereby consents to the 2 transfer of control of its Cable Television Franchise from FCLP to Charter as specified in the Application. 1.2. The City reserves all rights not expressly granted in this Agreement. In particular and without limitation: 1.2.1. Neither this Agreement, nor any other action or omission by the City at or before the execution of this Agreement, shall be construed to grant the City's consent to any future transfer of the Franchise and/or the cable system, and/or change in ownership and/or control of the Franchises and/or the cable system, or to mean that the City's consent to any future transaction is not required, except that Charter may: (a) restructure debt; (b) pledge or grant a security interest to any lender(s) of Charter's assets, including but not limited to, the franchise or interests in Charter, for purposes of securing an indebtedness, and; (c) sell capital stock of Charter, or any of Charter's affiliate companies in a transaction commonly known as an "initial public offering" without obtaining prior consent of the City; provided that Charter represents in writing to the City that any such transaction will not materially affect compliance with the Franchise Documents and that any affiliated Charter entity with an ownership interest in the Franchise shall fully comply with the terms of the Franchise Documents. Without limiting the foregoing, the approval of the Application does not itself authorize or permit Charter to lease or use the cable system to provide services other than cable services, or to install non-cable facilities, without obtaining the authorizations or approvals validly required by the City. 1.2.2. The City waives none of its rights with respect to Falcon's compliance with the terms, conditions, requirements and obligations set forth in the Franchise Documents ("Franchise Documents') which are hereinafter defined as the Franchise currently in force, the City Code as it may be amended from time to time, as well as those Transfer Agreements, Resolutions and Orders necessary to transfer ownership or control since the beginning of the Franchise terms including the City's right to compel Charter to comply with the Franchise Documents. 1.2.3. Falcon and Charter acknowledge and agree that the City is not, by approving the Application, agreeing that any past practice or course of conduct by Falcon, including its direct or indirect parent corporations or predecessors, complied with the Franchise Documents. Falcon and Charter agree that the City is not deciding that either of them is 3 financially, legally, or technically qualified to hold the Franchises; and the parties hereto agree that the City may and has properly reserved consideration of those issues to any renewal proceeding. 2. ACCEPTANCE OF FRANCHISE OBLIGATIONS 2.1. Compliance with Franchises - Franchisee agrees to fully comply with all of the terms and conditions set forth in the Franchise Documents. Charter agrees that it will not take any action, fail to take any action, or assert any claim or defense inconsistent with those obligations including, by way of example and not limitation, a claim that as a result of the Proposed Transaction, Charter, FCLP, FCCLLP, or Franchisee is relieved of liability for past acts or omissions. To the extent that any provisions of any document associated with the Proposed Transaction or approval of the Proposed Transaction between Charter and Franchisee (including but not limited to financing documents, mortgages and other instruments) conflicts with the Franchise Documents (other than the express provisions of this Agreement), the parties agree they are not approved, and the approval of the Application is subject to the condition that such provisions, if any, shall be of no force or effect with respect to the cable system serving the City. 2.2. Assumption of Obliqations - From and after the Transaction, Charter shall be jointly and severally liable with Franchisee for past acts and omissions of Franchisee and Charter shall be liable for the future acts and omissions of Franchisee or any of its direct and indirect parents and predecessors, known and unknown. Without limiting the foregoing, Charter hereby assumes joint and several liability for, and accepts the consequences of, any such acts and omissions, known and unknown, and assumes liability for any and all of Franchisee's (including its direct and indirect parents and predecessors, known and unknown) previously accrued but unfulfilled obligations to the City under the Franchise Documents, unless and until such obligations are expressly released by mutual agreement. The City's approval of the Application does not in any way release any obligation related to any past actions, omissions, practices, or system operations (including charges to subscribers) of Franchisee (or any of their direct and indirect parents or predecessors) or any obligation arising out of any failure to comply with California or federal law. The City may vindicate its rights by action brought against Franchisee and/or Charter, to the extent consistent with the assumptions of obligations in this paragraph. 2.3. Charter and Falcon acknowledge and agree that the consent to the Application is made in reliance upon the representations, documents, and information provided by Charter and Falcon in connection with the Proposed Transaction, all of which are incorporated into this 4 Agreement by this reference. Without limiting the foregoing, the Companies have warranted that the City may rely on the Form 394 submitted to the City in connection with the Proposed Transaction. The Companies represent and warrant that: (1) the Proposed Transaction will not materially adversely affect the costs of the entity holding the Franchise, so that the Franchisee's ability to satisfy the cable-related needs and interests of the City will not be affected; (2) there is nothing in any agreement related to the Proposed Transaction that would prevent or in any way inhibit Franchisee or Charter from agreeing to a renewal franchise, or from settling past compliance issues as proposed by the City. 3. ADDITIONAL CONDITIONS 3.1. In the event the transaction described in the Form 394: (a) does not close; (b) does not close before December 31, 1999; or (c) closes on terms that are in any material respect different from the terms disclosed to the City in writing, then this Agreement and any City consent to the Application shall be void and of no force or effect, and the Application deemed to have been timely denied; provided that nothing herein shall prevent the City, upon a request from Falcon or Charter, from granting an extension beyond December 31, 1999. 3.2. The Companies hereby waive any and all claims that they may have that any denial of the Application that results from this Section 3 fails to satisfy the deadlines established by applicable law including, without limitation, claims based on, arising out of, or relating to 47 USC 9537, as amended, and agree that they shall be deemed to have agreed to an extension of time to act on the Application as required to make any denial effective. 3.3. The Companies represent and warrant that the Proposed Transaction will not result in the City's cable system having responsibility for any additional debt, in any respect that would adversely affect the financial position of Franchisee including any affect on the future cable-related needs and interests of the community. 3.4 CCI and Charter agree that they will not enter into any arrangement which would result in the transfer of ownership or control of the cable system from Charter, or result in a transfer, without obtaining the prior approval of the City if approval is required by the Franchise Documents. Further, any transferee or new controlling entity must become a party to the Franchise as required by the Franchise Documents. 5 3.5 Franchisee and Charter agree to abide by the provisions, terms conditions, and limitations prescribed in the current Franchise. As a condition of the approval of this Transfer Application, the parties to this Agreement agree to adopt and abide by the provisions, terms, conditions, and limitations prescribed in the negotiated renewal franchise (Exhibit A) and agree that the City has conducted the franchise renewal process consistent with all applicable Federal, state, and local law. 3.6. Upon invoice by the City, Falcon agrees that it shall within 30 days of the invoice reimburse the City for all reasonable, direct, out of pocket costs the City incurred in analyzing and acting upon the Application. The reimbursement amount to be paid by Falcon shall not exceed a total of $15,000 for the Cities of Gilroy, Hollister, and San Juan Bautista. 4. RATES 4.1 The Franchisee and Charter agree that the Proposed Transaction will not result in any increase in the rates for basic cable service and the Franchisee and Charter will not rely upon an increase in debt service or in debt service coverage, if any, that results from the proposed Transaction, to justify an increase in rates for cable services. 4.2 No expenses incurred or amounts expended by the Companies in connection with the Proposed Transaction, including any such expenditures to comply with the terms of this Agreement, may be passed through to subscribers to the system in any form, or itemized on subscriber bills. 5. REPRESENTATIONS AND WARRANTIES 5.1 Each of the Companies hereby represent and warrant that at the time of the execution of this Agreement: (a) they are duly organized. validly existing and in good standing under the laws of the jurisdiction in which it is organized; (b) the Franchise Documents and, assuming due execution hereof by the other parties hereto, this Agreement constitute legal, valid and binding obligations of such company enforceable in accordance with their terms to the maximum extent required by law, provided it is understood no party waives its right to object to any term inconsistent with applicable law; (c) the execution and delivery of, and performance by such company under, this 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 6 company's partnership agreement, charter, bylaws, and/or other organizational documents; and (d) the execution and delivery of this Agreement does not contravene, result in a breach of, or constitute a default under, any contract or agreement to which any of them is a party or by which any of them or any of their properties may be bound (nor would such execution and delivery constitute such a default with the passage of time or the giving of notice or both), and does not violate or contravene any law, order, decree, rule, regulation or restriction to which any of them is subject. 5.2 The Companies represent and warrant that they are not asserting that the Franchisee or Charter will be permitted to provide services in addition to cable services as a result of the approval of the Application. 5.3 Charter Communications, Inc. agrees that, from and after the consummation of the Proposed Transaction, it will not take any action to cause Charter or the Franchisee to fail to fully comply with all of the lawful terms and conditions set forth in the Franchise Documents and (when executed and delivered) this Agreement. To the extent that any provisions of any document associated with the Proposed Transaction, or any other contract, conflicts with the lawful provisions of the Franchise Documents, this Agreement or applicable federal, state or local laws, the parties agree they are not approved, and the Application is subject to the condition that such provisions, if any, shall be of no force or effect with respect to the System serving the City. 5.4. The Companies acknowledge and agree that the City's consent to the Application is made in reliance upon the representations, documents, and information provided by Charter and FCLP in connection with the Application. The Companies are jointly and severably liable for their representations and warranties; and that the representations and warranties include, without limitation the following: 5.4.1. Charter and Franchisee agree to comply with all lawful Federal, State, and local requirements with respect to nondiscriminatory access to Falcon's cable modem platform for providers of Internet access service provided however, that prior to the enactment or enforcement of any such requirement by the City, Franchisee shall be provided with reasonable notice and an opportunity to be heard including the right to present evidence on any findings made or required to be made by the City with respect to such a requirement. Further, 7 Charter agrees that should it or any direct or indirect parent corporation, enter into any agreement with a franchising authority that requires the provision of non-discriminatory access to its cable modem platform for providers of Internet access services, then the same contractual provision will be made available upon the City's request in these Franchises upon equivalent terms and conditions. 5.4.2. Charter agrees that personally identifiable subscriber information as that term is used in 47 USC Section 551 will be used only in accordance with the provisions of the Cable Communications Policy Act of 1984, as amended by the Telecommunications Act of 1996. 5.4.3. Charter agrees that any consolidation of its customer service functions under itself or any parent company will not in any way interfere with Franchisee's compliance with the customer service requirements of the Franchise. 5.4.4. Charter and Franchisee agree that additional transfers of ownership or control of this Franchise would be a disproportionate burden upon the City. Charter agrees, therefore, to guarantee and assume liability for all reasonable costs incurred by the City in analyzing and acting upon any transfer application filed within 36 months of the closure of the Proposed Transaction. 5.4.5. Charter and Falcon agree to indemnify and hold the City harmless against any loss, claim, damage, liability or expense (including, without limitation, reasonable attorneys' fees) proximately caused by any representation or warranty made by that any Company herein which proves to be untrue or inaccurate in any material respect. 5.4.6. Charter and Falcon agree that any content enhanced residential Internet service it may provide constitutes a cable service within the meaning of 47 USC Section 522 unless and until the FCC by final order or a court of competent jurisdiction finds that residential Internet access provided over a cable system is not a cable service. Revenues received by Falcon or any other Cable Operator of the Cable System from the provision of content enhanced residential Internet service over the Cable System as a cable service shall be included within gross revenues for the purpose of the franchise fee calculation. 8 6. MISCELLANEOUS PROVISIONS 6.1. Effective Date: This Agreement shall be effective and binding upon the signatories once it has been signed by all signatories, subject to any conditions contained herein 6.2. Entire Aqreement: This Agreement constitutes the entire agreement of the parties with respect to the settlement of the matters addressed herein. No statements, promises or inducements inconsistent with this Agreement made by any party shall be valid or binding, unless in writing and executed by all parties. This Agreement may only be modified by written amendments hereto signed by all parties. 6.3 Breach: A material breach of this Agreement shall be deemed a material breach of the Franchise. 6.4 Bindinq Acceptance: This 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 Agreement is void without the express written consent of the signatories. 6.5 Voluntary Aqreement: This 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 Agreement. 6.6. Severabilitv: If any term, condition, or provision of this Agreement shall, to any extent, be held to be invalid, preempted, or unenforceable, the remainder shall be valid in all other respects and continue to be effective. 6.7. Counterparts: This 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 counterparts. 9 6.8. Governinq Law: This Agreement shall be governed in all respects by the law of the State of California. 6.9. Time of Essence: In determining whether a party has substantially complied with this Agreement, the parties agree that time is of the essence. 6.10. Captions and References: The captions and headings of sections throughout this Agreement are intended solely to facilitate reading and reference to the sections and provisions of this Agreement. Such captions shall not affect the meaning or interpretation of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Transfer Agreement as of the day and year first above written. APPROVED: City of Gilroy ATTEST: City Clerk thereof FALCON CABLE SYSTEMS COMPANY II, L.P. a California limited partnership By: Falcon Cable Communications, LLC, a Delaware limited liability company, its general partner By: [Name, Title] FALCON CABLE COMMUNICATIONS, LLC, a Delaware limited liability company 10 By: [Name, Title] FALCON COMMUNICATIONS, L.P., a California limited partnership By: Falcon Holding Group, L.P., a Delaware limited partnership its managing general partner By: Falcon Holding Group, Inc., a California corporation, its general partner By: [Name, Title] FALCON HOLDING GROUP, L.P., a Delaware limited partnership By: Falcon Holding Group, Inc., a California corporation, its general partner By: [Name, Title] CHARTER COM By: Title: HOLDING elations CH~Tii~MCMUNICATIQ~ ,INC. BitA~i Title: 11 APPROVED AS TO FORM: City Attorney 12