Full Text
1673258v1 10/19/2010 City of Missoula, Montana Resolution No. Approving the Proposed Transfer of Control of Bresnan Communications, LLC to BBHI Holdings LLC, and an entity wholly owned by Cablevision Systems Corporation RECITALS: WHEREAS, Bresnan Communications, LLC (“Grantee”) owns, operates and maintains a cable television system (the “System”) in the City of Missoula, Montana (“City”) pursuant to a November 3, 2003 Franchise Agreement adopted by the City as Ordinance No. 3237 (“Franchise”);and WHEREAS, pursuant to an Agreement and Plan of Merger (“Agreement”), BBHI Holdings, LLC, a Delaware limited liability company (“Acquiror”), a newly-created, wholly-owned indirect subsidiary of Cablevision Systems Corporation, a Delaware corporation (“Cablevision”), will acquire control of Bresnan Broadband Holdings, LLC, a Delaware limited liability company (which owns 100% of the ownership interests in Grantee), and, as a result, the indirect control of Grantee will change (the “Change of Control”); and WHEREAS, Grantee and Acquiror have requested the consent of the City to the Change of Control in accordance with the requirements of Section 9 of the Franchise, 5.80.060 of the Missoula Municipal Code and applicable provisions of federal law, and have filed FCC Form 394 with the City (the “Application”), and have provided the City with information to facilitate a review of the qualifications of the Grantee following the Change of Control; and WHEREAS, under applicable federal law, the Franchise, and Section 5.80.060 of the Missoula Municipal Code, the Change of Control contemplated in the Application requires the written consent of the City; and WHEREAS, the City retained Moss & Barnett, a Professional Association, to prepare a written report regarding the Change of Control for review and consideration by the City (“Report”); and WHEREAS, the City has reviewed the Report, Application and Change of Control and has determined that following completion of the Change of Control Grantee will possess the requisite legal, technical and financial qualifications to own, operate and maintain the System; and WHEREAS, Grantee has represented to the City that after the Change of Control is completed, Grantee will remain the legal entity which holds the Franchise and Grantee will continue to operate the System; and WHEREAS, Grantee has agreed to comply with the Franchise as well as with applicable law from and after the completion of the Change of Control; and WHEREAS, the City believes it is in the interest of the City to approve the Change of Control as described in the Application. ---PAGE BREAK--- 2 1673258v1 NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF MISSOULA MONTANA AS FOLLOWS: 1. The Franchise is in full force and effect and Grantee is the lawful holder of the Franchise. 2. Each of the foregoing recitals are hereby incorporated by reference. 3. The City hereby consents and approves of the Change of Control as contemplated in the Application, subject the following condition: Within thirty (30) days of the date of closing of the Change of Control contemplated in the Application, Grantee shall submit to City an executed Corporate Guaranty by and between Bresnan Broadband Holding, LLC as “Guarantor,” the City of Missoula, Montana, as “Franchising Authority,” and Bresnan Communications, LLC as the “Company” or Grantee under the Franchise. The Corporate Guaranty shall be in the form reasonably consistent with Attachment A to this resolution and otherwise acceptable to the City attorney. 4. Since the Grantee remains unchanged as a result of the Change of Control, nothing in this Resolution shall be interpreted to modify or alter Grantee’s past performance under the Franchise and Grantee shall remain fully liable for any and all Franchise obligations unless specifically modified or altered by mutual written agreement of the City and Grantee. 5. By this consent the City does not waive any of Grantee’s commitments, duties and obligations under the Franchise, including any accrued and unfulfilled obligation of the Grantee, whether known or unknown, relating to the Franchise. 6. In the event the Change of Control is not completed, for any reason, or is modified in any material manner, the City’s consent provided hereunder shall not be effective. This Resolution shall take effect and continue and remain in effect from and after the date of its passage, approval, and adoption. PASSED, ADOPTED AND APPROVED this day of 2010. CITY OF MISSOULA, MONTANA By: Its: ATTEST: ---PAGE BREAK--- 3 1673258v1 Clerk ---PAGE BREAK--- 4 1673258v1 Attachment A CORPORATE GUARANTY THIS AGREEMENT is made this day of , between Bresnan Broadband Holding, LLC (“Guarantor”), the City of Missoula, Montana (“Franchising Authority”), and Bresnan Communications, LLC (“Company”). WITNESSETH WHEREAS, the Franchising Authority has entered into a Franchise Agreement with the Company dated November 3, 2003 adopted by the City as Ordinance No. 3237 (“Franchise Agreement”), pursuant to which the Franchising Authority has granted the Company a Franchise, to own, operate, and maintain a cable television system (“System”); and WHEREAS, Guarantor is the parent company of the Company and has a substantial interest in the System and the conduct of the Company in complying with the Franchise Agreement and any and all amendments thereof and any agreements related thereto, which Franchise Agreement and amendments are hereby specifically referred to, incorporated herein, and made a part hereof; WHEREAS, the Guarantor desires to provide its unconditional guaranty as part of such security fund. NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Guarantor hereby unconditionally guarantees the due and punctual payment and performance of all of the debts, liabilities and obligations of Company contained in the Franchise Agreement (“Indebtedness”). This Agreement, unless terminated, substituted, or canceled, as provided herein, shall remain in full force and effect for the duration of the term of the Franchise Agreement, except as expressly provided otherwise in the Franchise Agreement. Upon substitution of another Guarantor reasonably satisfactory to the Franchising Authority, this Agreement may be terminated, substituted, or canceled upon thirty (30) days prior written notice from Guarantor to the Franchising Authority and the Company. Such termination shall not affect liability incurred or accrued under this Agreement prior to the effective date of such termination or cancellation. The Guarantor will not exercise or enforce any right of contribution, reimbursement, recourse or subrogation available to the Guarantor against the Company or any other Person liable for payment of the Indebtedness any collateral security therefor, unless and until all of the Indebtedness shall have been fully paid and discharged. The Guarantor will pay or reimburse the Franchising Authority for all costs and expenses (including reasonable attorneys’ fees and legal expenses) incurred by the Franchising Authority ---PAGE BREAK--- 5 1673258v1 in connection with the protection, defense or enforcement of this guarantee in any arbitration, litigation or bankruptcy or insolvency proceedings. Whether or not any existing relationship between the Guarantor and the Company has been changed or ended and whether or not this guarantee has been revoked, the Franchising Authority may, but shall not be obligated to, enter into transactions resulting in the creation or continuance of Indebtedness, without any consent or approval by the Guarantor and without any notice to the Guarantor. The liability of the Guarantor shall not be affected or impaired by any of the following acts or things (which the Franchising Authority is expressly authorized to do, omit or suffer from time to time, without notice to or approval by the Guarantor): any acceptance of collateral security, guarantors, accommodation parties or sureties for any or all Indebtedness; (ii) any one or more extensions or renewals of Indebtedness (whether or not for longer than the original period) or any modification of the interest rates, maturities or other contractual terms applicable to any Indebtedness; (iii) any waiver or indulgence granted to the Company, any delay or lack of diligence in the enforcement of any Indebtedness, or any failure to institute proceedings, file a claim, give any required notices or otherwise protect any Indebtedness; (iv) any full or partial release of, settlement with, or agreement not to sue, the Company or any other guarantor or other Person liable in respect of any Indebtedness; any discharge of any evidence of Indebtedness or the acceptance of any instrument in renewal thereof or substitution therefor; (vi) any failure to obtain collateral security (including rights of setoff) for Indebtedness, or to see to the proper or sufficient creation and perfection thereof, or to establish the priority thereof, or to protect, insure, or enforce any collateral security; or any modification, substitution, discharge, impairment, or loss of any collateral security; (vii) any foreclosure or enforcement of any collateral security; (viii) any transfer of any Indebtedness or any evidence thereof; (ix) any order of application of any payments or credits upon Indebtedness; any election by the Franchising Authority under § 1111(b)(2) of the United States Bankruptcy Code. The Guarantor waives presentment, demand for payment, notice of dishonor or nonpayment, and protest of any instrument evidencing Indebtedness. The Franchising Authority shall not be required first to resort for payment of the Indebtedness to the Company or other Persons or their properties, or first to enforce, realize upon or exhaust any collateral security for Indebtedness, before enforcing this guaranty. The Guarantor will not assert, plead or enforce against the Franchising Authority any defense of discharge in bankruptcy of the Company, statute of frauds, or unenforceability of the Guaranty which may be available to the Company or any other Person liable in respect of any Indebtedness, or any setoff available against the Franchising Authority to the Company or any such other Person, whether or not on account of a related transaction. Any notices given pursuant to this Agreement shall be addressed to the Guarantor and Company at Robert V. Bresnan, Esq., Senior Vice President and General Counsel, Bresnan Communications, LLC, One Manhattan Road, Purchase, NY 10577 and to the Franchising Authority, Mayor and Members of the City Council, City of Missoula, 435 Ryman Street, Missoula, Montana 59802. IN WITNESS WHEREOF, the Company, Franchising Authority, and Guarantor have executed this Corporate Guaranty as of the day, month and year first above written. GUARANTOR: BRESNAN BROADBAND HOLDING, LLC ---PAGE BREAK--- 6 1673258v1 By: Its: COMPANY: BRESNAN COMMUNICATIONS, LLC By: Its: FRANCHISING AUTHORITY: CITY OF MISSOULA, MONTANA By: Its: