MASTER TERMS AND CONDITIONS
CAPACITY LICENSE AGREEMENT
DATED AS OF JULY 1, 1998
These MASTER TERMS AND CONDITIONS (the "Terms") dated as of July
1 1998 shall govern each CAPACITY LICENSE AGREEMENT (each, an "Agreement")
entered into between an affiliated local cable system operator of Time Warner
Cable, a division of Time Warner Entertainment Company, L.P., which affiliate is
acting as licensor of fiberoptic cable capacity ("Licensor"), and an affiliate
of Time Warner Telecom LLC, which affiliate is acting as Licensee of fiberoptic
cable capacity ("Licensee"); each of which such Agreements shall expressly
incorporate the terms and conditions hereof by reference.
RECITALS
WHEREAS, Licensor owns fiberoptic facilities (the "System")
within the geographic area described in the Agreement (the "Service Area"); and
WHEREAS, Licensee desires to provide certain telecommunications
services as specified herein (the "Telecommunications Services") within the
Service Area; and
WHEREAS, subject to the terms and conditions set forth below,
Licensor desires to license the use of certain fiber capacity over the System to
Licensee, and Licensee desires to license the use of such capacity, to enable it
to provide such Telecommunications Services in the Service Area;
NOW THEREFORE, in consideration of the foregoing, and of the
promises and covenants contained in this Agreement, the parties agree as
follows:
1. License of Initial Capacity.
(a) Subject to the terms and conditions of the Agreement,
Licensor hereby licenses to Licensee the exclusive use of all capacity (the
"Initial Capacity") of the fiberoptic facilities described on Schedule 1
attached to the Agreement (the "Initial Facilities"). Licensee acknowledges that
it has accepted all the Initial Capacity as meeting the Acceptance Criteria set
forth herein.
(b) The description of the Initial Facilities set forth on
Schedule 1 defines fiber counts and either fiber segment routes or "logical
rings". Licensor agrees to deliver copies to Licensee of specific network
information regarding the Initial Facilities from its own maps or schematic
documentation files upon Licensee's request.
2. Licenses of Additional Capacity.
(a) Requests.
(i) At any time during the term of this Agreement,
Licensee may request Licensor to construct fiber optic facilities and/or license
to Licensee the capacity ("Additional Capacity"and together with the Initial
Capacity, the "Capacity") of any of Licensor's fiber optic facilities
("Additional Facilities" and together with the Initial Facilities,
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the "Facilities"), whether then existing or to be constructed. Licensor will
not, however, be obligated to fulfill any such request.
(b) Request Submission. Each Request shall contain such
information, such as the routes, the location of splice points, network
architecture and diversity requirements, and the proposed commencement date, as
Licensor may reasonably request to assist it in determining whether it will
construct and/or license the capacity of Additional Facilities. If Licensor
agrees to fulfill any Request, it shall deliver to Licensee a Cost Estimate
Schedule, in the form of Exhibit A, setting forth its good faith estimate of the
Allocated Cost (as defined on Annex A) of constructing such Additional
Facilities.
(c) Request Procedures. Upon Licensor's agreement to license
to Licensee Additional Capacity and Licensee's acceptance of Licensor's estimate
of the Allocated Cost thereof (which acceptance shall be evidenced by Licensee's
execution of the Cost Estimate Schedule and its return of same to such Licensor,
not later than twenty-one (21) days after the date specified on such Cost
Estimate Schedule; Licensee's failure to timely return any such Cost Estimate
Schedule shall render its Request null and void), Licensor shall seek to obtain
any required permits or similar authorizations and thereupon commence
construction of such Facilities for Licensee. Upon agreement by Licensor and
Licensee as to the license of Additional Capacity, and Licensee's acceptance of
Additional Capacity pursuant to Section 2(d) below, the parties shall execute a
Final Cost Schedule setting forth the final information regarding such
Additional Capacity as is required by the form of Exhibit B. On the effective
date or dates set forth in such Final Cost Schedule (or if not specified
therein, the date on which the Additional Capacity is accepted by Licensee in
accordance with Section 2(d) below or, if earlier, the date Licensee commences
use of such Additional Capacity), such facilities shall be deemed to be
Additional Facilities and the capacity thereof Additional Capacity, for purposes
of this Agreement. Licensee's payments for any Additional Capacity shall be
calculated as set forth in Annex A attached hereto, and the amount of such
payments shall be set forth on the Final Cost Schedule relating thereto.
(d) Acceptance Criteria. Upon its determination that any
Additional Capacity is ready for acceptance by Licensee, Licensor shall notify
Licensee (not less than two business days in advance of the proposed test) that
it will conduct a test (the "Acceptance Test") of the Additional Capacity, which
Acceptance Test will be conducted in accordance with the procedures set forth on
Annex B hereto. Annex B may be amended from time to time by mutual agreement of
the parties, provided that any amendments therein shall apply only to Additional
Capacity that is agreed to be licensed after implementation of such amendments.
The parties acknowledge that the test provided on Annex B is based on current
fiber optic telecommunications industry standards for technical and performance
specifications, and that any amendments thereto will be designed to reflect
changes in such standards from time to time (the "Specifications"). Licensee
shall have the right to be present during, and to participate in, the Acceptance
Test. Upon completion of the Acceptance Test, Licensor shall provide Licensee
with a test completion certificate in the form of Annex C appropriately
completed. Licensee shall then have ten days to reject the Additional Capacity
but only if test results do not meet Specifications. If Licensee fails to notify
Licensor of its rejection of the Additional Capacity within such period,
Licensee shall be deemed to have accepted the Additional Capacity as of
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the last day of such ten day period. Licensee shall have the right, by giving
written notice to Licensor within such ten day period, to conduct its own test
of the Additional Capacity within such period, and Licensor and Licensee shall
cooperate with each other to conduct such tests in a manner that does not
unreasonably interfere with Licensor's operations. Such tests shall be conducted
at a time that is mutually convenient to Licensor and Licensee, and Licensor
shall have the right to be present during and to participate in such test.
Licensee shall have five days after completion of the re-test to reject the
Additional Capacity, but only if test results do not meet the Specifications. If
Licensee accepts the Additional Capacity or is deemed to have accepted the
Additional Capacity, Licensor and Licensee shall execute and deliver a Final
Cost Schedule with respect to such Additional Capacity. If Licensee rejects the
Additional Capacity, it shall immediately itemize its reasons for the rejection
in writing, and Licensor and Licensee shall make commercially reasonable efforts
to make the Additional Capacity acceptable (including, if reasonable, partial
acceptance). Following any such cure by Licensor to Licensee's reasonable
satisfaction, Licensee shall promptly accept such Additional Capacity.
3. License Subject to Authorizations. Notwithstanding anything herein
to the contrary, all rights granted to Licensee and obligations of Licensor
hereunder are expressly subject to each of Licensor's authorizations to operate
the System, including without limitation governmental or municipal approval,
franchise or authorization, and to each right-of-way agreement, pole attachment
agreement, conduit agreement, lease, license, consent or other agreement
relating to the Capacity.
4. Term. This Agreement shall commence on the date hereof and shall
terminate, with respect to any Capacity, on the earliest of (a) the date that
the legal ability of the Licensor (or its successor or assign) to operate the
Facilities on which such Capacity is provided in the Service Area either
terminates or is materially impaired, (b) the date this Agreement terminates
with respect to such Capacity pursuant to Sections 18, 19, 25 or 26 hereof or
(c) the thirtieth anniversary of the effective date of this Agreement.
5. Payments.
(a) Calculation and Timing of Payments.
(i) Initial Capacity. Notwithstanding anything in this
Agreement to the contrary, the parties acknowledge and agree that Licensor (or
its parent entity) has made a capital contribution to Licensee in the amount
attributable to the payments which would have been due from Licensee pursuant to
this Agreement for the construction costs of the Initial Capacity. Accordingly,
Licensee shall not be obligated to make any payments to Licensor in respect of
the Initial Capacity pursuant to this Section 5(a)(i) or otherwise for the costs
of construction of the Initial Capacity. All other payments provided for in this
Agreement with respect to the Initial Capacity continue to be due and payable as
provided for herein.
(ii) Additional Capacity. For any Additional Capacity,
Licensee shall pay Licensor two payments. The first payment with respect to any
such Additional Capacity shall be equal to one-half of the Cost Estimate and
shall be paid upon Licensor's and Licensee's execution of the Cost Estimate
Schedule pursuant to Section 2(c) with respect to such Additional Capacity. The
second payment equal to the remaining balance shall be made within forty-five
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(45) days after Licensor and Licensee have executed a Final Cost Schedule in
respect of such Additional Capacity pursuant to Section 2(c). After the second
payment has been made in respect of any such Additional Capacity, Licensee shall
not be obligated to make any additional payments to Licensor, except as may be
otherwise specified in Annex D or elsewhere in this Agreement, in respect of
such Additional Capacity, notwithstanding that this Agreement may continue in
full force and effect thereafter.
(iii) Calculation of Payments. The Parties agree that all
payments set forth on any Cost Estimate Schedule or Final Cost Schedule shall be
calculated in accordance with the procedures set forth in Annex A attached
hereto.
(b) Inspection of Records. The amount of the payments set
forth on the Final Cost Schedule relating to any Additional Capacity shall be
based on the good faith calculations of the Licensor of the actual costs of
constructing such Additional Capacity. Licensor agrees that it will, for a
period of one year after the acceptance by Licensee of any Additional Capacity,
maintain reasonably comprehensive records relating to such costs. Licensor will
permit Licensee at any time during such period upon reasonable written notice
and during normal business hours to examine all of such records, to make copies
and extracts therefrom and to discuss such records and other matters relating to
such Additional Capacity with the respective officers, employees and independent
public accountants and other agents of such Licensor. If any discrepancy is
found in such records which leads Licensee to believe in good faith that the
actual cost of constructing the Additional Capacity was less than Licensor's
calculation of such cost as reflected on any Final Cost Schedule, Licensor and
Licensee shall negotiate in good faith to determine whether an overpayment has
been made by Licensee, and if so, then Licensor shall promptly pay to Licensee
an amount equal to the entire amount of such overpayment. Any records of such
Licensor audited by Licensee shall constitute proprietary information under
Section 20 of this Agreement, irrespective of the lack of restrictive notices or
other express communications to the effect that the information in such records
is proprietary.
6. Taxes and Expenses. Licensee shall pay (a) any sales tax, property
tax, transfer tax, use tax, gross receipts tax, excise tax, business and
occupation tax, or other similar Federal, state and local taxes or charges
(excluding taxes imposed on Licensor's net income) imposed by any governmental
authority upon Licensor or its facilities or Licensee in connection with any
payments due from Licensee to Licensor hereunder, or as a result of Licensee's
activities under this Agreement, or imposed upon or with respect to the Capacity
or the Facilities, (b) any additional franchise fees imposed upon or collected
from Licensor or Licensee by any franchising authority as a result of Licensee's
activities under this Agreement (which payment shall be grossed up to make
Licensor whole for any additional such fees owed with respect to Licensee's
payment), and (c) without duplication of the payments required pursuant to
Section 12 and Annex D attached hereto, for its share on an allocated basis of
pole attachment fees, conduit fees and other out-of-pocket rights-of-way
expenses incurred by Licensor in connection with the Facilities, as follows.
Where Facilities are the only facilities utilizing pole attachment rights,
conduit rights or other rights-of-way, Licensee shall bear all the fees relating
thereto. Where there are no Facilities included in Licensor's facilities
utilizing pole attachments rights, conduit rights or other rights-of-way,
Licensor shall bear all the fees relating thereto. Where Facilities and other
facilities of Licensor utilize pole attachment rights, conduits or other rights
of way, Licensor and Licensee shall each bear 50% of the out-of-pocket fees
relating thereto. Further, if and to the
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extent that Licensor is required to pay incremental pole, conduit or other
right-of-way out-of-pocket fees solely due to the nature of Licensee's use of
the Capacity or Facilities, Licensee shall reimburse Licensor for all such
incremental fees. (If at any time Licensor is required to pay such incremental
fees due to a use of the Facilities or other facilities that is made by both
Licensor and Licensee or any third party exercising rights grants by or through
Licensor, the incremental fees shall be allocated to Licensee according to the
relative proportion of the number of fibers subject to such use). Licensee shall
also pay, or reimburse Licensor for, all fines, penalties, late fees or similar
payments or interest charged on late payments to the extent incurred due to
Licensee's failure to pay amounts owed by it hereunder promptly.
7. Use of Capacity. (a) Licensee shall not use the Capacity in
violation of this Agreement, any law, rule, regulation or order of any
governmental authority having jurisdiction, or any franchise, license, agreement
or certificate relating to the System or Licensor's franchises, unless the
validity thereof is being contested in good faith and by appropriate proceedings
(but only so long as such proceedings and Licensee's use of the Capacity do not,
in Licensor's reasonable opinion, involve any risk of the sale, forfeiture, or
loss of the System, any Authorizations (as defined in Section 16(a)(i)), or any
part thereof or any interest therein). Licensee shall not do or permit anything
to be done with respect to the Capacity that would invalidate or conflict with
any insurance policies maintained by Licensor or Licensee covering the Capacity
or the Facilities.
(b) Licensee shall have exclusive control over the
Telecommunications Services it provides over the Capacity, including, without
limitation, customer premise and nodal electronics, sales and marketing,
electronics maintenance and monitoring, and billing and collection.
(c) Licensee shall not use the Capacity, directly or
indirectly (through a subsidiary or affiliate of Licensee), to engage in the
business of providing, offering, packaging, marketing, promoting, or branding
(alone or jointly with or as an agent for other parties) any Residential
Services or to engage in the business of producing, packaging, distributing,
marketing, hosting or otherwise providing, offering, promoting or branding
Content Services.
(d) (i) "Residential Services" shall mean wireline
telecommunications services or other services (including, without limitation,
data services) of any nature provided directly or indirectly to third party
end-users at address locations other than business locations. "Business
locations" shall mean (A) address locations that are used solely for business
purposes, including, without limitation, public spaces within business locations
and governmental offices; and (B) hotels, hospitals, jails and the business
offices of residential facilities within educational institutions and within
nursing and assisted living complexes.
(ii) "Content Services" means entertainment, information
or other content services, whether fixed or interactive, or any services
incidental thereto; provided, however, that Content Services shall not include
acting solely as a carrier of video, audio or data of unaffiliated third parties
by providing transport services, so long as Licensee has no other direct or
indirect pecuniary interest in the transmitted information or content.
8. Non-Exclusivity. Nothing in this Agreement shall be construed
to require
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Licensor to be Licensee's exclusive provider of, or contractor with respect to,
fiberoptic facilities or equipment in the Service Area or to limit in any way
Licensee's right in its own name to apply for and obtain municipal franchises,
authorizations and permits, to construct, maintain and own fiberoptic
facilities, and to apply for and obtain pole attachment agreements, conduit
licenses or other rights-of-way agreements from other rights-of-way providers.
Further, nothing in this Agreement shall imply or require that Licensee be
Licensor's exclusive licensee or lessee of network facilities or capacity.
9. Use of Licensee Capacity by Licensor. (a) If Licensee obtains
operating authority, rights-of-way, building entrance facilities, pole
attachment agreements or conduit rights in the Service Area, constructs and owns
fiber optic facilities in the Service Area and determines, in its sole
discretion, that it has capacity in such facilities, it will, upon request of
Licensor, negotiate in good faith with Licensor for (i) the license of capacity
to Licensor for the provision of cable television and any other services, such
license to the extent possible to include all the applicable terms and
provisions (including, without limitation, Annexes A and D) of this Agreement as
if Licensee were Licensor and Licensor were Licensee hereunder or (ii) the
provision to Licensor of the kinds of additional facilities services specified
in Section 10 hereof.
(b) In furtherance and not in limitation of the foregoing, with regard
to building entrance or riser facilities constructed by Licensee after the date
hereof (but prior to the fifth anniversary of the date of this Agreement),
Licensee shall:
(i) Notify Licensor of buildings in which it obtains rights of
entry or access;
(ii) Use reasonable efforts to assist Licensor in obtaining
similar rights of entry or access; and
(iii) Upon Licensor's request, construct (with the "Allocated
Cost" of such construction, as defined in Annex A, to be paid by Licensor) and
install up to a one-half inch diameter of coaxial cable or fiber cable bundle
for Licensor's ownership (or, if Licensor cannot obtain the necessary rights of
entry or access, Licensee shall license to Licensor the capacity of such fibers,
as described above in Section 9(a)(i)).
10. Other Services. To the extent Licensor is unable or unwilling to
provide requested Additional Capacity to Licensee pursuant to Section 2 above,
Licensor will, upon request of Licensee, provide Licensee with the following
alternative services, subject to agreement in advance in writing upon
compensation Licensor is to receive with respect thereto, and subject to and in
accordance with any applicable legal, contractual, regulatory or technical
limitations:
(a) permit Licensee (subject to Section 13) to overlash
Licensor owned facilities (which shall become Additional Facilities hereunder)
on poles on which Licensor's facilities are located;
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(b) make available to Licensee any spare capacity, determined
in Licensor's sole discretion, in conduits, ducts, inner ducts, building entry
facilities or building riser facilities owned or leased by such Licensor; and
(c) use reasonable efforts to obtain, in Licensor's name, pole
attachment agreements or conduit licenses and to sublet or assign such
agreements or licenses to Licensee to permit Licensee to construct facilities.
11 Splicing Services. (a) Unless otherwise agreed between the parties
or as provided below, Licensor will perform fiber splicing services on any
Facilities on which Capacity is licensed hereunder. Any splice request shall be
in writing and shall contain information as to the general location of the
desired splice point, number of fibers to be spliced and desired completion
date. Splicing shall occur only at splice points designated or approved in
writing by Licensor.
(b) Where the Facilities to be spliced are in a separate
sheath from any other Licensor fibers ("separate sheath Facilities"), Licensor
shall use commercially reasonable efforts to xxxx within six months of the date
of this Agreement the separate sheath Facilities' splice containers for ease of
identification. After such marking is completed, Licensee shall have 24- hour,
365 days access to each splice point for separate sheath Facilities for the
purpose of splicing and maintaining splices of such Facilities.
(c) Licensor and Licensee shall agree upon a set of request
and notification procedures, and response times and procedures (to be subject to
revision every two years), for splicing and splice maintenance (including in
emergency circumstances) where the Facilities are in a sheath shared with other
Licensor fibers ("shared sheath Facilities"). Licensee shall request, and
Licensor shall provide, splicing and maintenance services in accordance with
these procedures; provided that if Licensor fails with regard to any specific
project to provide splicing or splice maintenance service in accordance with
such procedures, Licensee shall thereupon be entitled (as its sole remedy, in
addition to Section 23) to 24-hour, 365 day access to the splice points for
shared sheath Facilities for the purpose of splicing and maintaining splices of
such Facilities with regard to such specific project only.
The compensation to Licensor for any splicing work (other than splicing
as part of construction of Additional Facilities hereunder, which shall be as
set forth in Annex A) shall be as set forth in Annex D. All splicing or
maintenance undertaken by Licensee hereunder shall be solely in accordance with
Section 13.
12. Performance and Maintenance. Licensor shall use its commercially
reasonable efforts to maintain the Facilities so that at all times each portion
of such Facilities performs in accordance with the Specifications in effect as
of the date the Capacity of such Facilities was added to this Agreement. In
consideration of the performance of such maintenance, Licensee shall pay
maintenance fees to Licensor in the amounts and at the times set forth in Annex
D. Inspection and maintenance will be provided by the Licensor or its
subcontractors unless prior arrangements have been made between Licensor and
Licensee.
13. Licensee Requirements. Notwithstanding any other provision hereof,
for any project of Licensee agreed to by Licensor that requires access to or
easements over Licensor's
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headends, facilities, network, conduit, hubsites, splice cans or other property,
Licensee shall in each instance comply with all of the following:
(a) Licensee shall only employ and permit access by a
contractor that has been specifically approved in writing by Licensor for work
within the Service Area; provided that Licensor shall not unreasonably withhold
or delay approval of any proposed contractor.
(b) Licensee shall not rearrange any Licensor facilities
(including Facilities) without Licensor's prior written consent.
(c) Licensee shall give Licensor such prior written notice of
its activity as is set forth in the Agreement and Licensor shall be entitled to
be present, at Licensee's expense, and to supervise Licensee and its agents with
respect to its activities regarding the Facilities.
(d) Licensee (or its agents or permittees) shall provide
Licensor with a diagram of the exact configuration of any splice or other work
completed. Licensor shall have no liability of any nature whatsoever hereunder
for maintenance or other work that is improperly performed due to failure of
Licensee to provide Licensor with such diagram and information.
Assuming no Facilities splice point is involved,
Licensee shall not be required to abide by the restrictions of this Section 13
with regard to its actions on customer premises locations.
14. Title. All right, title and interest in the System and the
Facilities provided by Licensor hereunder shall at all times remain exclusively
with Licensor. All right, title and interest in all facilities and associated
equipment provided by Licensee shall at all times remain exclusively with
Licensee. No such Licensee facilities and equipment shall be placed in any
public rights-of-way unless Licensee has obtained an independent right to do so
from the appropriate public authority. Except as expressly provided elsewhere in
this Agreement, Licensor shall retain full operating control and shall continue
to hold and be solely responsible for all operating authority with regard to the
System. Licensee shall hold and be responsible for all operating authority for
its facilities (other than the Facilities or Capacity) and for the provision of
any services by it, including its use of the Capacity.
15. Liens and Encumbrances. Neither party, directly or indirectly,
shall create, impose or suffer to be imposed any lien on (a) any property
interest of the other, (b) the rights or title relating thereto, or any interest
therein, or (c) this Agreement. Each party will promptly, at its own expense,
take such action as may be necessary to duly discharge any such lien.
16. Representations and Warranties.
(a) Licensor hereby represents, warrants and covenants to
Licensee as follows:
(i) Licensor has made available to Licensee true
and correct copies of each governmental or municipal approval, franchise and
authorization, right-of-way agreement, pole attachment agreement, conduit
agreement and lease, license, consent or other agreement
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relating to the Facilities and/or the Capacity thereof (all of which are
hereinafter collectively called the "Authorizations") obtained by it which
relate to Licensor's ability to license the Capacity and perform Licensor's
obligations under this Agreement.
(ii) Licensor is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation or
organization, is duly authorized to do business in the jurisdiction in which the
Capacity is made available and has full organizational power and authority to
execute, deliver and perform the terms of this Agreement.
(b) Licensee hereby represents, warrants and covenants to
Licensor as follows:
(i) Licensee has made available to Licensor true and
correct copies of each Authorization obtained by it which relate to Licensee's
ability to use the Capacity and perform Licensee's obligations under this
Agreement.
(ii) Licensee is duly organized and validly existing
under the laws of its jurisdiction of organization, is authorized to do business
in the jurisdiction in which the Capacity is made available and has full
organizational power and authority to execute, deliver and perform the terms of
this Agreement.
17. Compliance with Law. Each party shall perform its respective rights
and obligations hereunder in material compliance with the Authorizations
obtained by it and all applicable laws, rules and regulations imposed by any
governmental authority.
18. Relocation of the Facilities. Licensee recognizes that, from time
to time, Licensor may elect or be required to relocate the Facilities. Where
such relocation is solely for the convenience of Licensor, Licensor shall be
solely responsible for all costs incurred to relocate the Facilities.
(Relocations requested by governmental authorities shall not be deemed for the
convenience of Licensor.) In all other cases (including street widening or
improvement projects), Licensee shall pay (a) 50% of the direct, out-of-pocket
costs of the relocation, if the project involves both Facilities and other
facilities of Licensor, or (b) 100% of the direct, out-of-pocket costs of the
relocation, if the project involves only Facilities; but in either case, only to
the extent such costs cannot be recovered from any third party. Licensee will,
however, have the option of terminating this Agreement with respect to such
Capacity and paying Licensor any as yet unpaid amounts pursuant to Section 5 and
any other amounts which are then due and payable under this Agreement (the
"Payoff Amount"). Licensor will use commercially reasonable efforts to effect
any relocation in a manner that will not cause any material interruption to
Licensee's use of the Capacity. Licensor shall use commercially reasonable
efforts to give Licensee at least six months prior notice of any relocation or
of any governmental proceedings which could reasonably be expected to result in
a relocation, or such lesser amount of notice that Licensor receives from such
governmental authority, and Licensee shall have the right to participate in any
such proceedings.
19. Condemnation and Casualty.
(a) Condemnation. If all or any portion of the Facilities
are taken for any
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public or quasi-public purpose by any lawful power or authority by the exercise
of the right of condemnation or eminent domain, Licensee shall be entitled to
terminate the license of the Capacity provided hereunder on such Facilities. In
such event, both parties shall be entitled to participate in any condemnation
proceedings to seek to obtain compensation by either joint or separate awards
for the economic value of their respective interests in the Capacity or the
Facilities and will equitably share any awards as their economic interests
appear.
(b) Casualty. If all or any portion of the Facilities are made
inoperable and beyond feasible repair due to a casualty or other force majeure
event (as that term is defined in Section 27 below), Licensee shall be entitled
to terminate this Agreement with regard to the Capacity affected by such
casualty or other event. In such event, both parties shall be entitled to seek
to recover the economic value of their respective interests in the Capacity or
the Facilities (i) under any insurance policy carried by either party or their
affiliates or any third party, or (ii) in either joint or separate actions, from
any third party which may be legally responsible for causing such casualty. The
parties will equitably share any recoveries as their economic interests appear.
20. Proprietary Information. Each party acknowledges that, in the
course of the performance of this Agreement, it may have access to privileged
and proprietary information claimed to be unique, secret and confidential, and
which constitutes the exclusive property or trade secrets of the other, and the
parties acknowledge that they are in a confidential relationship with each
other. This information may be presented in documents marked with a restrictive
notice or during oral discussions, at which time representatives of the
disclosing party will specify that the information is proprietary. Information
that a party receives from the disclosing party that, while not so marked, would
be reasonably understood by the recipient as confidential or proprietary (such
as customer information) shall also be considered proprietary information
hereunder. Such information shall specifically include, but is not limited to,
this Agreement and all exhibits, annexes, attachments, schedules and addenda
hereto.
Each party agrees to maintain the confidentiality of the
proprietary information and to use the same degree of care as it uses with
regard to its own proprietary information to prevent the disclosure, publication
or unauthorized use of the proprietary information. Neither party may duplicate
or copy proprietary information of the other party other than to the extent
necessary for legitimate business uses in connection with this Agreement. A
party shall be excused from these nondisclosure provisions if (a) the
proprietary information has been or is subsequently made public other than
through a breach of this Agreement or (b) the proprietary information is
independently developed by such party or (c) the other party gives its consent
to the disclosure of the proprietary information or (d) the disclosure is
required by law, regulation or governmental or judicial authority (provided that
the compelled party gives prompt notice of such required disclosure to the
original disclosing party to enable it to obtain a protective order or other
relief). Notwithstanding anything to the contrary in this Agreement, this
provision shall survive the termination or expiration of this Agreement.
21. Indemnification.
(a) Indemnification by Licensee Licensee will indemnify and
hold harmless Licensor, its affiliates, and all officers, directors, employees,
stockholders, partners and agents of Licensor and its affiliates from and
against any and all claims, demands, costs, damages, losses,
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liabilities, expenses of any nature (including reasonable attorneys',
accountants', and experts' fees and disbursements), judgments, fines,
settlements and other amounts (collectively, "Damages") arising from any and all
claims, demands, actions, suits or proceedings, civil, criminal, administrative
or investigative (collectively "Claims") relating to or arising out of:
(i) the installation, maintenance or operation of
Licensee's connections to the Facilities or the conduct or management of
Licensee's business with regard to the Facilities or the connections thereto or
the Capacity thereof, except to the extent such Damages are caused or
contributed to by Licensor or its agents;
(ii) any breach by Licensee of any material
obligation or covenants under this Agreement;
(iii) any failure of any representation or warranty
made by Licensee herein to be true in any material respect as of the date made
or deemed made;
(iv) any Claim by any customer of Licensee relating
to the provision by Licensee of services to such customer, over the Capacity or
otherwise; and
(v) any Claim of any third party (other than as
described in Section 21 (b)(iv) below) resulting from the gross negligence or
wilful misconduct of Licensee.
The foregoing indemnification obligations
shall not be construed to broaden the representations and warranties of Licensee
regarding Authorizations as set forth in Section 16(b)(i).
(b) Indemnification by Licensor. Licensor will indemnify and
hold harmless Licensee, its affiliates and all officers, directors, employees,
stockholders, partners and agents of Licensee and its affiliates from and
against any and all Damages arising from any and all Claims relating to or
arising out of:
(i) The installation, maintenance or operation by
Licensor of the Facilities or the Capacity thereof or the conduct or management
of Licensor's business, except to the extent such Damages are caused or
contributed to by Licensee or its agents;
(ii) Any breach on the part of Licensor of any
material obligation or covenant under this Agreement;
(iii) Any failure of any representation or warranty
made by Licensor herein to be true in any material respect as of the date made
or deemed made; and
(iv) Any Claim by any customer of Licensor relating
to Licensor's provision of services over any facilities of which the Facilities
are a part; and
(v) Any Claim of any third party (other than as
described in Section 21 (a)(iv) above) resulting from the gross negligence or
wilful misconduct of Licensor.
12
The foregoing indemnification obligations
shall not be construed to broaden the representations and warranties of Licensor
regarding Authorizations as set forth in Section 16(a)(i).
(c) Procedure. No claims for indemnification shall be made by
either party against the other unless the aggregate amount of such claim exceeds
the amount of $5,000. A person seeking indemnification hereunder shall promptly
notify the indemnifying party in writing of any Claim for which indemnification
is sought, provided that any failure to so notify the indemnifying party will
not relieve the indemnifying party from any liability or obligation which it may
have to any indemnified person except to the extent of any material prejudice to
the indemnifying party resulting from such failure.
If the facts giving rise to such indemnification
involve any actual or threatened claim or demand by or against a third party,
the indemnifying party shall be entitled to control the defense, prosecution and
settlement of such claim or demand in the name of the indemnified person, if the
indemnifying party notifies the indemnified person in writing of its intention
to do so within twenty (20) days of the receipt of such notice by the
indemnified person.
The indemnified person shall have the right, however,
to participate in such proceeding through counsel of its own choosing, which
participation shall be at its sole expense. Whether or not the indemnifying
party chooses to defend or prosecute such claim, each indemnified person which
is not the indemnifying party, shall, to the extent requested by the
indemnifying party and at the indemnifying party's expense, cooperate in the
prosecution or defense of such claim and shall furnish such records, information
and testimony and attend such conferences, discovery proceedings, hearings,
trials and appeals as may reasonably be requested in connection therewith. The
indemnifying party shall not settle any claim or assertion, unless the
indemnified party consents in writing to such settlement, which consent shall
not be unreasonably withheld and which consent shall not be withheld in
connection with any such settlement for money damages to be paid by the
indemnifying party only, which does not admit the fault of the indemnified party
and which does not impose injunctive or other equitable relief on the
indemnified party.
22. Provision of Insurance Coverage. Each Party shall, at its own
expense, secure and maintain in force, throughout the term of this Agreement,
the following insurance coverage and limits of liability with carriers
authorized to conduct business in all states in which any Facilities are
located, that have an A.M. Best rating of B+ or better:
(a) Comprehensive General Liability.
(i) Coverages to include: Products and Completed Operations
Liability, Hazards of Premises/Operations (including XCU), Blanket Contractual
Liability, Independent Contractors Liability, Fire Legal Liability, Personal
Injury (including death), and Broad Form Property Damage.
(ii) Limits of Liability: $2,000,000 per occurrence, combined
single limit for bodily injury and property damage.
13
(iii) With respect to any Facilities or Capacity, Licensor and
Licensee each will name the other as additional insured.
(b) Comprehensive Auto Liability.
(i) Coverage to include: Owned/Leased vehicles, Non-owned
vehicles, Hired Vehicles.
(ii) Limits of Liability: $2,000,000 per accident, combined
single limit for bodily injury and property damage.
(iii) With respect to any Facilities or Capacity, Licensor and
Licensee will name the other as additional insured.
(c) Workers' Compensation - statutory coverage and limits.
(d) Property Insurance.
(i) Coverage: All Risk to property and includes Business
Interruption. With regard to transmission and distribution lines, this coverage
may be provided through commercial insurance or a self-insured reserve fund.
(ii) Limits to be sufficient to cover full replacement cost of
Leased Facilities.
(iii) With respect to any Facilities or Capacity, Licensor and
Licensee will name the other as Loss Payee.
(e) Certificate of Insurance; Additional Conditions. With respect to
any Facilities or Capacity, Licensor and Licensee each shall provide to the
other a Certificate of Insurance evidencing all coverages outlined in this
Section 22. All such insurance obtained by either Licensor or Licensee, as the
case may be, shall require that the other be notified, in writing, at least
thirty days prior to the cancellation or adverse modification of any such
required insurance policy. Any such notification shall be required to be sent by
registered certified mail or certified courier service. The fulfilment of a
party's obligations regarding insurance coverage shall not relieve such party of
any liability hereunder or in any other way modify such party's obligations
hereunder.
23. Interruption of Service. Notwithstanding any other provision of
this Agreement, in the event of any interruption of use by Licensee of any
portion of the Capacity which causes a customer service outage through no fault
of Licensee, which interruption is the responsibility of Licensor or its agents
and is not a force majeure event, as that term is defined in Section 27,
Licensor's sole obligation shall be to provide a credit to Licensee against
Licensee's obligation to pay maintenance fees pursuant to Section 12, which
credit shall be calculated on a per occurrence basis at the lesser of (a) an
amount equal to the actual damage suffered by Licensee, and (b) the amount set
forth in the following chart:
14
Length of Outage: Credit:
---------------- -------
2 hours or less: no credit
over 2 hours to 8 hours: $20,000
over 8 hours: $50,000;
provided, however, that in no event shall the amount required to be credited by
Licensor under this Section 23 in any calendar year exceed the amount payable by
Licensee to Licensor for maintenance fees pursuant to Section 12 in such year.
The remedy provided in this Section 23 shall be Licensee's sole and exclusive
remedy for outages or interruptions of service, unless such outages or
interruptions of service were caused by Licensor's willful misconduct or gross
negligence and except for the termination provisions in Sections 18, 19 and 25.
24. Events of Default. Each of the following events shall constitute an
event of default (whether any such event shall be voluntary or involuntary or
occur by operation of law or pursuant to any judgment, decree, order, rule or
regulation of any court or administrative or governmental body):
(a) the failure of Licensee to make any license payment
pursuant to Section 5 hereof within fifteen days of the due date thereof; or any
failure of Licensee to make any maintenance payment pursuant to Section 12
hereof or any other payment due hereunder within fifteen days after Licensee's
receipt of notice from Licensor of Licensee's failure to make such payment when
due;
(b) the failure of either party to perform or observe any
material covenant or agreement (including without limitation, any failure of
Licensee to comply with the use restrictions under Section 7) to be performed or
observed by it hereunder, and such failure shall continue unremedied for a
period of thirty days after written notice is given to the defaulting party by
the non-defaulting party; or
(c) a court or governmental authority of competent
jurisdiction shall enter an order appointing, without consent by the party, a
custodian, receiver, trustee, intervener, or other officer with similar powers
with respect to it or with respect to any substantial part of its property, or
constituting an order for relief or approving a petition in bankruptcy or
insolvency law of any jurisdiction, or ordering the dissolution, winding up, or
liquidation of either party, or if any such petition shall be filed against
either party and shall not be dismissed within sixty days thereafter, or an
order shall have been issued granting either party a suspension of payments
under applicable law and any such order is not dismissed within sixty days
thereafter.
25. Remedies. Upon the occurrence and during the continuance of any
event of default, the non-defaulting party may, at its option, declare this
Agreement to be in default and may, in addition to any other remedies provided
herein, terminate this Agreement. Except as expressly provided herein, no remedy
is intended to be exclusive, but each shall be cumulative and in addition to and
may be exercised concurrently with any other remedy available to Licensor or
Licensee at law or in equity. If Licensor terminates this Agreement due to a
Licensee default,
15
Licensee shall pay the Payoff Amount promptly to Licensor. IN NO EVENT SHALL
EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR
PUNITIVE DAMAGES, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE.
26. Additional Termination Rights.
(a) Licensee. Upon the payment by Licensee of the Payoff
Amount due with respect to such Capacity, and upon one hundred eighty (180) days
written notice to Licensor, Licensee may, without further obligation to
Licensor, terminate its license of any reasonably defined portion of the
Capacity without cause. Licensee shall thereupon remove or cause all of its
plant and facilities connected to the related Facilities to be removed at its
expense or may, if Licensor agrees, abandon such plant and facilities in place.
If Licensee abandons any of such plant and facilities, Licensor may, within
eighteen (18) months of its receipt of such notice, remove the abandoned plant
and facilities and xxxx Licensee for the costs incurred by it which are
reasonably allocable to the removal of such plant and facilities, which xxxx
shall be payable within thirty (30) days of receipt.
(b) Licensor. If any governmental agency or third party
institutes proceedings to impose any public utility or common carrier status or
obligations on Licensor or the use of Licensor's capacity or facilities as a
result of its performance of this Agreement, or if any action is brought by any
third party challenging the continued validity or seeking to adversely modify,
suspend or revoke Licensor's operating authority for all or any part of its
services or System as a result of its or Licensee's performance of this
Agreement, or if, as a result of any change in applicable law or regulation (or
in judicial or other official interpretations thereof), Licensor reasonably
deems that such a proceeding is likely and has a significant possibility of
success on the merits, Licensor may, without further liability to Licensee, upon
one hundred eighty (180) days written notice, terminate this Agreement as a
whole without cause; provided, however that Licensor shall not terminate this
Agreement or any Capacity provided by it during the pendency of such proceedings
or actions if Licensee agrees to indemnify and hold harmless Licensor (pursuant
to an indemnification agreement in form and substance reasonably satisfactory to
Licensor) against all liability, claims, fines or damages (including reasonable
attorneys' fees) incurred by Licensor as a result of Licensee's continued
operations and use of the Capacity unless (x) Licensor is required to do so by a
valid and final order of a court of competent jurisdiction, or (y) in Licensor's
opinion, continued performance or activity by Licensee under the terms of this
Agreement would have a present or future material adverse effect on the local
cable or other operations of Licensor, its financial condition or operating
condition or is reasonably likely to result in the imposition of public utility
or common carrier status on Licensor or an adverse modification, suspension or
revocation of such Licensor's operating authority for its services or its System
or the forfeiture of any portion of the System. Licensor shall control the
defense, prosecution and settlement of such claim or demand but shall allow
Licensee the opportunity to participate in such defense through counsel of its
own choosing, which participation will be at the sole expense of Licensee. If
the proceedings or actions would in any event affect only a portion of the
Capacity, Licensor will instead terminate only the license of the Capacity that
is affected thereby. Upon the effective date of such a termination, Licensee
shall terminate its use of the Capacity, remove its plant and equipment (or
abandon the same as provided in Section 26(a) above), and cease operations over
such Capacity.
16
27. Force Majeure Events. Neither party shall be liable to the other
for any failure of performance under this Agreement due to causes beyond its
control, including but not limited to: acts of God, fire, flood or other
catastrophes; any law, order, regulation, direction, action or request of the
United States government, or of any other government, including state and local
governments having or claiming jurisdiction over such party, or of any
department, agency, commission, bureau, corporation or other instrumentality of
any one or more of these federal, state or local governments, or of any civil or
military authority; national emergencies; unavailability of materials or
rights-of-way; insurrections; riots; wars; or strikes, lock-outs, or work
stoppages (collectively, "force majeure events"). If a force majeure event
continues for more than 60 days in effect, the party who has not been receiving
performance shall be entitled to terminate any the License of specific Capacity
affected by such force majeure event, upon written notice to the other party.
28. Orderly Termination: Return of Facilities. Upon termination of this
Agreement in whole or with respect to any specific Capacity (other than
expiration of the term thereof under Section 4(c)), Licensor and Licensee agree
to cooperate in good faith to effect an orderly transition of any
Telecommunications Services provided over such Capacity. Without limitation,
Licensor hereby agrees that notwithstanding such termination it will, to the
extent permitted by applicable law and regulation and governmental authority,
(i) continue to make available to Licensee any portions of the Capacity at the
rates specified herein which Licensee reasonably requires to fulfill its
obligations under existing customer agreements for a period up to three months
after such termination in the case of a termination for Licensee's default, or
twelve (12) months after such termination in all other cases, and (ii) upon
termination under Section 4(c), negotiate agreements with Licensee that are
reasonable in the independent judgment of Licensor and Licensee, pursuant to
which such Licensor may provide fiber optic facilities to Licensee in order for
Licensee to provide telecommunications services in the Service Area. Unless any
alternate arrangements are otherwise agreed, upon termination and expiration of
the applicable transition period, Licensee shall at its expense remove or cause
to be removed all of its plant and facilities connected to the Facilities, or
may, if Licensor agrees, abandon such plant and facilities in place in
accordance with Section 26(a).
29. Network Architecture and Diversity. The parties shall consult and
cooperate with each other with regard to all technical matters relating to
network architecture, diversity and related matters. Each party will designate a
technical engineering representative and each agrees to inform the other party
of all its construction plans as in effect from time to time.
30. Additional Obligations of Licensee. In addition to the obligations
of Licensee set forth elsewhere in this Agreement, Licensee shall:
(a) have full and complete control, responsibility and
liability for the signals distributed over the Capacity by Licensee or for its
benefit;
(b) have full and complete control, responsibility and
liability for the purchase, installation, construction and maintenance of the
terminals and peripheral equipment connected to the Capacity utilized by
Licensee, provided that such equipment shall not be located in public rights of
way without Licensee having obtained all necessary rights to utilize such rights
of way;
17
(c) employ its own employees, agents and/or independent
contractors in the handling, storage, retrieval, processing, transmitting,
and/or receiving of any electronic signals distributed over the Capacity;
(d) provide all commercial or other power supplies for the
operation of the Capacity (or, if agreed by Licensor and Licensee, Licensee
shall instead bear its Allocated Cost share of Licensor's costs for power
supplies), terminals and peripheral equipment or facilities used with or
connected to any System and located on Licensee's, or its customers', premises;
and
(e) have full and complete control, responsibility and
liability for maintaining any operating authority from any Federal, state or
local governmental body or agency that relates to the activities of Licensee
under this Agreement, including Lessee's utilization of Capacity.
31. Interest. All payments due from either party to the other under the
terms of this Agreement which are not paid when due shall bear interest from the
due date until paid at an interest rate equal to the then-current Time Warner
intercompany rate, if both Licensee and Licensor are then Time Warner
affiliates, or if not, the lesser of 1 1/2% per month or the maximum lawful rate
permitted by law.
32. Assignment. Other than as set forth herein, the rights, privileges
and obligations of either party hereunder may not be subleased, sublicensed,
assigned or delegated or otherwise transferred or extended to another party, in
whole or in any part, and any such attempted sublease, sublicense, assignment,
delegation or transfer or extension shall be null and void. Licensor or Licensee
may, however, assign or transfer this Agreement, in whole or in part, to any
affiliate controlling, controlled by or under common control with their
respective parent companies, without approval of the other, upon 30 days notice,
provided such affiliate continues to be under the common control of Licensor's
or Licensee's parent company (as the case may be). Further, Licensor may assign,
delegate or otherwise transfer its rights and obligations under this Agreement,
or any portion thereof, without Licensee's consent, in connection with a sale,
assignment or other transfer of all or substantially all of the System (or any
individual cable system within the System), and its business, assets or equity
interests in connection therewith; provided that such transferee agrees in
writing to assume all of the obligations of Licensor hereunder with regard to
such System (or portion thereof); and provided further that upon such assumption
Licensor shall be released from any obligation with regard to the subsequent
performance of obligations hereunder regarding Capacity or Facilities included
in the transferred System (or portion thereof).
33. Miscellaneous.
(a) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument; and in pleading or
proving any provision of this Agreement, it shall not be necessary to produce
more than one complete set of such counterparts.
(b) Captions: Gender. Article and section headings contained
in this Agreement are for reference purposes only and shall not in any way
affect the meaning or interpretation of this Agreement. Whenever used herein the
singular number shall include the
18
plural, the plural shall include the singular, and the use of any gender shall
include all genders.
(c) Governing Law and Binding Effect. This Agreement shall be
governed by and construed and enforced in accordance with the law (other than
the law governing conflicts of law questions) and decisions of the State of New
York applicable to contracts made and to be performed entirely therein. This
Agreement shall bind and inure to the benefit of each of the parties and their
successors and permitted assigns.
(d) Waivers and Amendments. This Agreement may not be amended
nor shall any waiver, change, modification, consent or discharge be effected,
except by an instrument in writing adopted, in the case of an amendment, by each
party and, in the case of a waiver, consent or discharge, executed by the party
against whom enforcement of such instrument is sought. Any consent by either
party to, or waiver of, a breach by the other party shall not constitute a
waiver or consent to any subsequent or different breach. If either party shall
fail to enforce a breach of this Agreement by the other party, such failure to
enforce shall not be considered a consent to or a waiver of said breach or any
subsequent breach for any purpose whatsoever.
(e) Relationship Not a Partnership or an Agency. Nothing
contained in this Agreement shall be deemed to constitute a partnership, joint
venture or agency agreement between parties.
(f) DISCLAIMERS. THERE ARE NO AGREEMENTS, WARRANTIES OR
REPRESENTATIONS, EXPRESS OR IMPLIED EITHER IN FACT OR BY OPERATION OF LAW,
STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE OR USE, EXCEPT THOSE EXPRESSLY SET FORTH HEREIN.
(g) Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule or law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to either party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that transactions contemplated hereby are fulfilled to the greatest
extent possible.
(h) Further Assurances. Each party agrees to execute all such
further instruments and documents and to take all such further actions as the
other party may reasonably request in order to effectuate the terms and purposes
of this Agreement.
19
SCHEDULE OF SIGNATORIES
TO
CAPACITY LICENSE AGREEMENT
MASTER TERMS AND CONDITIONS
LANDLORD: TENANT:
--------- -------
1)Albany Division, Time Warner AXS of Albany, L.P.
Time Warner Entertainment-
Advance/Xxxxxxxx
2)Xxxxxx Division Time Warner Communications
Time Warner Entertainment- of Austin, L.P.
of Austin, L.P.
3)Binghamton Division, Time Warner AXS of Albany, L.P.
Time Warner Entertainment-
Advance/Xxxxxxxx
4)Charlotte Division, Time Warner Communications of
Time Warner Entertainment- North Carolina, L.P.
Advance/Xxxxxxxx
5)Cincinnati Division of Time Warner AXS of Greater
Time Warner Cable, Cincinnati, L.P.
Time Warner Entertainment
Company, L.P.
6)Columbus Division Time Warner AXS of Columbus,
of Time Warner Cable, L.P.
Time Warner Entertainment
Company, L.P.
7)Greensboro Division, Time Warner Communications of
Time Warner Entertainment- North Carolina, L.P.
Advance/Xxxxxxxx
8)Hawaii Division of Time Warner Communications of
Time Warner Cable, Hawaii, L.P.
Time Warner Entertainment
Company, L.P.
9)Houston Division, Time Warner Communications of
Time Warner Entertainment- Houston, L.P.
Advance/Xxxxxxxx
10)Indianapolis Division, Time Warner Communications of
Time Warner Entertainment- Indiana, L.P.
Advance/Xxxxxxxx
11)Memphis Division of Time Warner Communications of
of Time Warner Cable, The Mid-South, L.P
Time Warner Entertainment
Company, L.P.
12)Milwaukee Division of Time Time Warner Communications of
Warner Cable, Time Warner Milwaukee, L.P.
Entertainment Company, L.P.
13)New York Division of Time Time Warner AXS of New York
Warner Cable, Time Warner City
Entertainment Company, L.P.
14)Florida Division, Time Warner AXS of Florida,
Time Warner Entertainment- L.P.
Advance/Xxxxxxxx
15)Raleigh/Durham/Chapel Hill Time Warner Communications of
Division, Time Warner Entertainment- North Carolina, L.P.
Advance/Xxxxxxxx
16)Rochester Division, Time Warner AXS of Rochester,
Time Warner Entertainment- L.P.
Advance/Xxxxxxxx
17)San Antonio Division, Fibrcom, Inc.
KBL Cablesystems of
the Southwest, Inc.
18)San Diego Division, Time Warner AXS of California,
Time Warner Entertainment- L.P.
Advance/Xxxxxxxx
19)Tampa Division, Time Warner AXS of Florida,
Time Warner Entertainment- L.P.
Advance/Xxxxxxxx
