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ASSIGNMENT AND ASSUMPTION OF FRANCHISE
This Assignment and Assumption of Franchise ("Assignment") is made and
shall be deemed effective as of September 15, 1995 (the "Effective Date"), by
and between NORTHLAND CABLE PROPERTIES FOUR LIMITED PARTNERSHIP, a Washington
limited partnership, and its assigns ("Assignee"), and SLT CABLE TV, INC., a
Texas corporation ("Assignor").
RECITALS
A. Pursuant to that certain amended Ordinance No. 27, passed and
approved on September 18, 1989, the City of Oak Grove, Texas (the "City")
granted a cable television franchise (the "Franchise") to Progressive Cable
Communications, Incorporated ("Progressive"). Pursuant to that certain Agreement
for Purchase and Sale of Assets and Bill of Sale, dated September 18, 1990, the
Franchise was assigned from Progressive to Assignor. A copy of the Franchise is
attached hereto as Exhibit C-1 and incorporated herein by this reference.
B. Pursuant to the terms and conditions of that certain Asset Purchase
Agreement between Assignor and Northland Telecommunications Corporation, a
Washington corporation, dated as of April 10, 1995 (the "Agreement"), which
Agreement was assigned to Assignee pursuant to that certain Assignment and
Assumption of Asset Purchase Agreement dated September 15, 1995, Assignee shall
acquire from Assignor all of Assignor's right, title and interest in and to the
Franchise.
C. The City consented to the assignment of the Franchise as described
above and such consent is documented by that certain Resolution of the City
Council of the City of Oak Grove, dated August 21, 1995, a copy of which is
attached hereto as Exhibit C-2 and incorporated herein by this reference.
AGREEMENTS
In consideration of the mutual covenants, promises and conditions set
forth in the Agreement and herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties covenant and agree as follows:
1. Assignment of Franchise
(a) As of the Effective Date, Assignor hereby assigns,
conveys, transfers and sets-over to Assignee any and all of Assignor's right,
title and interest in and to the Franchise and any and all of Assignor's
responsibilities and obligations under the Franchise, such assignment being upon
all of the terms and conditions as contained in the Franchise.
(b) Assignor hereby covenants and warrants to Assignee that
Assignor has performed all of the obligations to be performed by Assignor
pursuant to and in accordance with the terms of the Franchise and that Assignor
is not in default or breach of any provisions of the
Assignment and Assumption of Franchise 9/11/95
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Franchise, including, but not limited to the timely payment of the franchise
fee, and that the same is in full force and effect.
(c) Exhibit C-1 is a true, correct and complete copy of
the Franchise.
2. Assumption of Franchise. As of the Effective Date, Assignee
hereby accepts and assumes the assignment of the Franchise from Assignor and
hereby assumes all of the responsibilities and obligations of the franchisee
under the terms of the Franchise.
3. Effect. This Assignment shall not limit or modify any of the
provisions of the Agreement.
Assignor: SLT CABLE TV, INC.
By /s/ AMERICO CORNACCHIONE
--------------------------------
Its VICE PRESIDENT
-------------------------------
Assignee: NORTHLAND CABLE PROPERTIES FOUR
LIMITED PARTNERSHIP
By Northland Communications Corporation,
Managing General Partner
By /s/ JAMES A PENNY
--------------------------------
Its VICE PRESIDENT
-------------------------------
Assignment and Assumption of Franchise 9/13/95
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RESOLUTION OF THE CITY COUNCIL
CITY OF OAK GROVE, TEXAS
REGARDING THE CONSENT TO
ASSIGNMENT OF FRANCHISE
WHEREAS, the City of Oak Grove, Texas (the "City"), acting by and
through its City Council passed and enacted that certain Ordinance No. 27, dated
September 18, 1989, granting to Progressive Cable Communications, Incorporated
("Progressive"), the authority to build, construct, operate and maintain a cable
television system within the City (the "Franchise"); and
WHEREAS, Progressive assigned the Franchise to SLT Cable TV Company
("SLT Cable") by Agreement for Purchase and Sale of Assets and Bill of Sale,
dated September 18, 1990, which assignment was approved by the City; and
WHEREAS, SLT Cable intends to sell substantially all of its assets,
including all of its right, title and interest in the Franchise to Northland
Cable Properties Four Limited Partnership and its successors and assigns
("Northland"); and
WHEREAS, it is in the best interests of the City and its citizens to
consent to the above-referenced assignment and transfer of the Franchise.
NOW, THEREFORE, be it resolved by the Council acting on behalf of the
City that:
1. The City hereby approves and consents to the transfer and
assignment of the Franchise from SLT Cable to Northland.
2. The City hereby approves the encumbrance of the Franchise and
the assets of the cable television system, and the assignment of same for
security purposes, in connection with the acquisition and operation of the
system and the financing and refinancing, from time to time, of the business
operations of Northland.
3. Except as specifically set forth herein, the assignment and
transfer of the Franchise shall not alter, affect or otherwise change any of the
terms or conditions of the Franchise.
4. In connection with the assignment and transfer of the
Franchise to Northland the City certifies to SLT Cable and Northland that:
(a) The Franchise was duly and validly issued by the
City, and upon its assignment to Northland, the duly authorized franchisee will
be Northland.
(b) The Franchise is in full force and effect as of the
date hereof, is valid and enforceable in accordance with its terms and will not
expire until September 18, 2009.
(c) No event of default under the Franchise, and no event
which could become an event of default with the passage of time or the giving of
notice, or both, has occurred and is continuing as of the date hereof.
City of Oak Grove Resolution - Assignment of Franchise 7/13/95
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(d) The four percent (4%) franchise fee payable to the
City under the terms of the Franchise is calculated on the franchisee's receipts
collected annually and is payable, in arrears, on a semi-annual basis. The
payments are due within sixty (60) days of the end of each period, the first
period ending the last day of June and the second period ending the last day of
December of each year.
(e) All fees owing to the City pursuant to the Franchise
have been paid through 12-31-94.
(f) The City acknowledges receipt of a completed FCC Form
394 from SLT Cable and Northland.
5. Ordinance No. 27 and this Resolution were and are adopted in
accordance with the notice and procedure requirements of the laws of the State
of Texas governing cities, and with the notice and procedure requirements
prescribed by the City. Ordinance No. 27 and this Resolution, including without
limitation the grant of and the consent to the assignment of the Franchise, were
and are adopted in accordance with and do not conflict with the laws,
ordinances, resolutions and other regulations of the City, as presently in
effect or as the same were in effect at the time the particular action was
taken.
6. This Resolution shall take effect immediately upon passage by
the Council.
PASSED, ADOPTED AND HEREBY RESOLVED by the City Council of the City of
Oak Grove, Texas this 21st day of August, 1995.
OAK GROVE CITY COUNCIL
CITY OF OAK GROVE, TEXAS
/s/
-------------------------------------
Mayor of the City of Oak Grove, Texas
ATTEST:
- ----------------------------
City Secretary
- ----------------------------
Clerk of the City Council
CITY COUNCIL MEMBERS YES NO ABSTAIN ABSENT
- --------------------- --- -- ------- ------
/s/ Don Stay X
- --------------------- (motion) --- -- ------- ------
/s/ Edgar Cotton X
- --------------------- (second) --- -- ------- ------
/s/ Clint Pugh X
- --------------------- --- -- ------- ------
/s/ Don Moore X
- --------------------- --- -- ------- ------
/s/ Kirby McGlaughlin X
- --------------------- --- -- ------- ------
- --------------------- --- -- ------- ------
City of Oak Grove Resolution - Assignment of Franchise 7/13/95
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ORDINANCE NO. 27
AN ORDINANCE GRANTING A FRANCHISE TO PROGRESSIVE CABLE COMMUNICATIONS,
INCORPORATED, A TEXAS CORPORATION, ITS SUCCESSORS AND ASSIGNS, TO
BUILD, CONSTRUCT, OPERATE AND MAINTAIN A CABLE TELEVISION SYSTEM IN THE
CITY OF OAK GROVE, TEXAS AND SETTING FORTH CONDITIONS ACCOMPANYING THE
GRANTING OF THIS FRANCHISE;
BE IT ORDAINED BY THE PEOPLE OF THE CITY OF OAK GROVE, TEXAS:
SECTION 1 -- TITLE
This ordinance shall be know and may be cited as a franchise.
SECTION 2 -- DEFINITIONS
For the purpose of this Ordinance, and when not inconsistent with the
context, words used herein in the present tense include the future; words in
plural include the singular, and vice versa. The word "shall" is always
mandatory. The captions supplied herein for each section are for convenience
only. Said captions have no force of law, are not part of the section, and are
not to be used in construing the language of the section. The following terms
and phrases, as used herein, shall be given the meaning set forth below:
(A) "Basic Cable Service" is any service tier which includes the
retransmission of local television signals.
(B) "Cable television system" or "CATV System" or "cable system"
is a facility consisting of a set of closed transmission paths and associated
signal generation, reception and control equipment designed to provide video and
other programming and information to subscribing members of the public.
(C) "City" is the City of Oak Grove, Texas as a municipal
corporation under the laws of the state of Texas.
(D) "Grantee" is Progressive Cable Communications, Incorporated, a
corporation organized and existing under the laws of the State of Texas, and it
is the grantee of rights under this franchise.
(E) "City Council" is the Council of the City of Oak Grove, Texas
or its designated representative.
(F) "Federal Communications Commission" or "FCC" is the present
Federal agency of that name as constituted by the Communications Act of 1934, or
any successor agency created by the United States Congress.
(G) "Person" is any individual, firm, partnership, association,
corporation, company or organization of any kind.
(H) "Gross subscriber revenues" shall include any and all
compensation or receipts derived by Grantee from charges for subscriber services
offered in connection with the carriage of broadcast signals. It shall not
include any refunds or credits made to subscribers or any taxes imposed upon the
services furnished by Grantee. It shall include revenues from leased channels,
and programming offered as options to the regular service either on a per
program or per channel basis, if any.
SECTION 3 -- GRANT OF AUTHORITY
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There is hereby granted by the City to Grantee the right and privilege
to construct, erect, operate and maintain in, upon, along, across, above, over,
or under the streets, alleys, public utility easements, public ways and public
places now laid out or dedicated and all extensions thereof and additions
thereto in the City, all poles, wires, cables, underground conduits, manholes
and other conductors and fixtures necessary for the maintenance and operation in
the City of a cable television system for the transmission of television signals
and all other signals, including those permitted by the FCC, either separately
or upon or in conjunction with any public utility maintaining the same in the
City, with all of the necessary and desirable appliances and appurtenances
pertaining thereto. Without limiting the generality of the foregoing, this
franchise and grant shall and does hereby include the right in, over, under and
upon the streets, sidewalks, alleys, public utility easements and public grounds
and places in the City to install, erect, operate or in any way acquire the use
of, as by leasing or licensing, all lines and equipment necessary to a cable
television system and the right to make connections to subscribers and the right
to repair, replace, enlarge and extend said lines, equipment and connections.
The rights herein granted for the purposes set forth shall not be exclusive, and
the City reserves the right to grant a similar use of said streets, alleys,
public utility easements, public ways and places to any person at any time
during the period of this franchise.
SECTION 4 -- POLICE POWERS
Grantee shall at all times during the term of this franchise be subject
to all lawful exercise of the police power of the City. The right is hereby
reserved to the City to adopt, in addition to the provisions herein contained
and any other existing applicable ordinances, such additional applicable
ordinances as it shall find necessary in the exercise of its police power;
provided, however, that such additional ordinances shall be reasonable, shall
not conflict with or alter in any manner the rights granted herein, and shall
not conflict with the laws of the State of Texas, the laws of the United States
of America, or the rules, regulations and policies of the FCC.
SECTION 5 -- INDEMNIFICATION
Grantee shall save the City, its officers, agents and employees
harmless from all loss sustained by the City on account of any suit, judgment,
execution, or claim or demand whatsoever against the City resulting from
negligence on the part of Grantee or arising in any manner whatsoever from the
construction, operation or maintenance of its cable television system in the
City; and for this purpose Grantee shall carry property damage and personal
injury insurance with some responsible insurance company or companies qualified
to do business in the State of Texas which shall name the City as additional
insured. The amounts of such insurance to be carried for liability due to
property damage shall be $500,000 as to any occurrence; and against liability
due to injury to or death of person, $500,000 as to any one person and
$1,000,000 as to any one occurrence. The City shall notify Grantee, in writing,
within thirty (30) days after the presentation of any claim or demand, either by
suit or otherwise, made against the City on account of any negligence or
activity as aforesaid on the part of Grantee. Where any such claim or demand
against the City is made by suit or other legal action, written notice thereof
shall be given by the City to grantee not less than five (5) days prior to the
date upon which an answer to such legal action is due or within thirty (30) days
after the claim or demand is made upon the City, whichever notice period yields
Grantee the larger amount of time within which to prepare an answer. Failure by
the City to notify Grantee properly in accordance with the foregoing of any such
claim, suit, or demand against the City shall not release Grantee from its
obligation to indemnify the City as provided herein as long as Grantee rights
are not prejudiced thereby.
SECTION 6 -- CONSTRUCTION AND MAINTENANCE
(A) All structures, lines and equipment erected by Grantee within the
City shall be so located as to cause minimum interference with the proper use of
streets, alleys, public utility easements and other public ways and places and
to cause minimum interference with the rights of reasonable convenience of
property owners, and Grantee shall comply with all reasonable, proper and lawful
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ordinances of the City now or hereafter in force. Existing poles, posts,
conduits, and other such structures of electric power system , telephone
company, or other public utility located in the City shall be made available to
Grantee for leasing or licensing upon reasonable terms and rates and shall be
used to the extent practicable in order to minimize interference with travel and
avoid unnecessary duplication of facilities. The City shall use reasonable
effort to actively assist Grantee in obtaining reasonable joint pole or conduit
use agreements from the owners of existing poles or conduits. To the extent that
existing poles, posts, conduits and other such structures are not available, or
are not available under reasonable terms and conditions, including excessive
cost or unreasonable limitation upon the use of Grantee's cable television
system. Grantee shall have the right to purchase or lease land, rights-of-way,
or public utility easements upon or under which to erect and maintain its own
poles, conduits, and other such structures as may be necessary for the
construction and maintenance of its cable television system.
(B) In case of any disturbance by Grantee of pavement, sidewalk,
driveway or other surfacing, Grantee shall, at its own cost and expense and in a
manner approved by the City, replace and restore all paving, sidewalk, driveway
or surface so disturbed in as good condition as before said work was commenced.
(C) In the Event that at any time during the period of this
franchise the City shall lawfully elect to alter or change any street, alley,
public utility easement, or other public way requiring the relocation of
Grantee's facilities, then in such event Grantee, upon reasonable notice by the
City shall remove, relay and relocate the same at its own expense; provided,
however, that where public funds are available for such relocation pursuant to
law, Grantee shall not be required to pay the cost.
(D) Grantee shall, on the request of any person holding a building
moving permit issued by the City, temporarily raise or lower its lines to permit
the moving of the building. The expense of such temporary removal shall be paid
by the person requesting the same, and Grantee shall have the authority to
require such payment in advance.
(E) Grantee shall have the authority to trim trees and/or shrubs
upon and/or overhanging all streets, alleys, public utility easements, sidewalks
and public places of the City so as to prevent the branches of such from coming
into contact with Grantee's facilities.
(F) All poles, lines, structures and other facilities of Grantee
in, on, over and under the streets, sidewalks, alleys, public utility easements
and public grounds or places of the City shall be kept by Grantee at all times
in a safe and substantial condition. All equipment, lines, poles, structures,
cables and other facilities installed in the City, shall remain the sole
property of Grantee, unless so otherwise stated.
(G) Grantee shall extend its distribution system so as to service
the people within the franchise area. However, Grantee shall not be required to
extend such distribution system to any potential subscriber who is located in an
isolated area from the main trunk system, unless Grantee can be guaranteed a
fair rate of return as per industry standards by those subscribers who request
the extension of the distribution system into such areas.
SECTION 7 -- APPLICABLE LAW
This franchise is governed by and subject to all applicable rules,
regulations and policies of the Federal Communications Commission and by the
laws of the State of Texas.
SECTION 8 -- FRANCHISE TERM
This franchise shall take effect and be in full force from and after
acceptance by Grantee as provided in Section 15, and the same shall continue in
full force and effect for a term of twenty (20) years.
SECTION 9 -- RENEWAL PROCEDURE
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Grantee shall have the unlimited option to renew this franchise for an
additional period not to exceed fifteen (15) years. Should Grantee desire to
exercise this option, it shall so notify the City in writing, not less than
three (3) months prior to expiration of this franchise.
SECTION 10 -- FORFEITURE
If Grantee should violate any of the terms, conditions, or provisions
of this franchise or if Grantee should fail to comply with any reasonable
provisions of any ordinance of the City regulating the use by Grantee of the
street, alleys, public utility easements or public ways of the City, and should
Grantee further continue to violate or fail to comply with the same for a period
of thirty (30) days or such longer period specified by the City as is reasonable
under the circumstances, after Grantee shall have been notified in writing by
the City to cease and desist from any such violation or failure to comply so
specified, then Grantee may be deemed to have forfeited and annulled and shall
thereby forfeit and annul all the rights and privileges granted by this
franchise; provided, however, that such forfeiture shall be declared only by
written decision of the City Council after an appropriate public proceeding
before the City Council affording Grantee due process and full opportunity to
assess the evidence used rendering said declaration and to be heard in response
to any such notice of violation or failure to comply; and provided further that
the City Council may, in its discretion and upon a finding of violation or
failure to comply, impose a lesser penalty than forfeiture of this franchise or
excuse the violation or failure to comply upon a showing by Grantee of
mitigating circumstances. Grantee shall have the right to appeal any finding of
violation or failure to comply and any resultant penalty to any court of
competent jurisdiction. In the event that forfeiture is imposed upon Grantee, it
shall be afforded a period of six (6) months within which to sell, transfer, or
convey this cable television system to a qualified purchaser at an equitable
price based on the fair market value of the franchise itself and the cable
system as a going concern. Reasonable extensions of time in which to effect said
sale, transfer or conveyance shall be granted by resolution from the City
Council. During this six (6) month period, which shall run from the effective
date of the final order or decision imposing forfeiture, including any appeal,
Grantee shall have the right to operate this cable system pursuant to the
provisions of this franchise.
SECTION 11 -- SURRENDER RIGHT
Grantee may surrender this franchise at any time upon filing with the
City Council of the City a written notice of its intention to do so at least
three (3) months before the surrender date. On the surrender date specified in
the notice, all of the rights and privileges and all of the obligations, duties
and liabilities of Grantee in connection with this franchise shall terminate.
SECTION 12 -- TRANSFERS
All of the rights and privileges and all of the obligations, duties and
liabilities created by this franchise shall pass to and be binding upon the
successors of the City and the successors and assigns of Grantee; and the same
shall not be assigned or transferred without the written approval of the City
Council, which approval shall not be unreasonably withheld; provided, however,
that this Section shall not prevent the assignment of hypothecation of the
franchise by the Grantee as security for debt without such approval; and
provided further that transfers or assignments of this franchise between any
parent and subsidiary corporation or between entities of which at least fifty
percent (50%) of the beneficial ownership is held by the same person, persons,
or entities, or entities which are controlled or managed by the same person,
persons, or entities, shall be permitted without the prior approval of the City
Council.
SECTION 13 -- FRANCHISE FEE
In consideration of the terms of this franchise, Grantee agrees to pay
the City a sum of money equal to four percent (4%) of Grantee's gross subscriber
revenues per year derived from the subscriber services in the City. Such annual
sum shall be payable one-half (1/2) thereof at the end of each semi-annual
period. The semi-annual anniversary shall be the last day of June and last day
of December of each year, and each semi-
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annual period. The semi-annual anniversary shall be the last day of June and
last day of December of each year, and each semi-annual payment shall be paid
within sixty (60) days thereafter.
SECTION 14 -- RECEIVER SALES PROHIBITED
As a condition of this franchise, Grantee agrees that it shall not
engage in the business of sales or repair of television receivers owned by its
subscribers; nor shall it be responsible for the operating condition of said
receivers; provided, however, that this paragraph shall not apply to converters,
decoders, home interactive terminals and other such devices as may be used in
furnishing any programming or service via Grantee's cable television system.
SECTION 15 -- EFFECTIVE DATE
This Ordinance shall become effective when all terms and conditions are
accepted by both Grantee and City and shall then be and become a valid and
binding contract between the City and Grantee.
SECTION 16 -- UNLAWFUL ACTS
(A) It shall be unlawful for any person to intercept or assist in
intercepting or receiving, whether physically, electrically, acoustically,
inductively or otherwise any television signals, radio signals, pictures,
programs, sounds or any other information, impulses or intelligence transmitted
over Grantee's cable system without full payment to Grantee or its lessee by all
parties receiving service. For purposes of this provision "assist in
intercepting or receiving" shall include the manufacture of distribution of
equipment intended by the manufacturer or distributor for unauthorized reception
of any communications service offered over a cable system.
(B) It shall be unlawful for any person, without the consent of
the Grantee, to willfully tamper with, remove, or injure any cable, wires, or
other equipment used for the distribution of television signals, radio signals,
pictures, programs, sounds, or any other information, impulses, or intelligence
transmitted over Grantee's cable system.
(C) It shall be a misdemeanor punishable by a fine or not more
than Five Hundred Dollars ($500.00), or by imprisonment for a term not to exceed
six (6) months, or both, for any person to violate any of the provisions of this
Section.
(D) The prohibitions, penalties and remedies set forth in this
Section are in addition to the prohibitions, penalties and remedies for theft of
cable service provided by federal and state law.
SECTION 17 -- SEVERABILITY
If any section, subsection, sentence, clause, phrase or portion of this
Ordinance is for any reason held invalid or unconstitutional by any Federal or
State court or administrative or governmental agency of competent jurisdiction,
specifically including the FCC, such portion shall be deemed a separate,
distinct and independent provision, and such holding shall not affect the
validity of the remaining portions hereof.
PASSED AND APPROVED THIS 18TH DAY OF SEPTEMBER 1989.
ATTEST:___________________________ _______________________________________
CITY SECRETARY CHIEF OFFICIAL
CITY OF OAK GROVE, TEXAS
ATTEST: _______________________________________
Progressive Cable Communications, Inc.