MASTER DISTRIBUTION, DISSOLUTION AND COOPERATION AGREEMENT
Exhibit 10.46
EXECUTION COPY
This MASTER DISTRIBUTION, DISSOLUTION AND COOPERATION AGREEMENT, dated as of January 1, 2007
(this “Agreement”), is entered into by and among Texas and Kansas City Cable Partners,
L.P., a Delaware limited partnership (the “Partnership”), as assignor of the assets and
liabilities to be distributed hereunder, Time Warner Entertainment-Advance/Xxxxxxxx Partnership, a
New York general partnership, as assignee of the other TWI Partner (the “TWI Assignee”),
Comcast TCP Holdings, Inc., a Delaware corporation, as assignee of the other Comcast Partners (the
“Comcast Assignee”, and together with the TWI Assignee, the “Assignees”), each of
the Partners, each of the TWI Transferred Subsidiaries (as defined below), each of the Comcast
Transferred Subsidiaries (as defined below) and Comcast Distribution LLC (as defined below).
Capitalized terms used herein and not otherwise defined herein shall have the respective meanings
ascribed to them in the Partnership Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, each Partner is a party to that certain Limited Partnership Agreement of the
Partnership, dated as of June 23, 1998, as amended by Amendment No. 1, dated as of December 11,
1998, Amendment No. 2, dated as of May 16, 2000, Amendment No. 3, dated as of August 23, 2000,
Amendment No. 4, dated as of May 1, 2004, and Amendment No. 5, dated as of February 28, 2005 (as
amended, the “Partnership Agreement”);
WHEREAS, the Partners intend for the Partnership to be dissolved in accordance with the
dissolution provisions of the Delaware Revised Uniform Limited Partnership Act (Del. Code Xxx. Tit.
6 § 17-101 et. seq.) (the “DRULPA”) and pursuant to the Dissolution
Procedure set forth in Section 8.4 of the Partnership Agreement;
WHEREAS, pursuant to Section 8.4(a) of the Partnership Agreement, the Comcast Partners
initiated a Dissolution Procedure by delivering a Dissolution Notice to the TWI Partners on July 3,
2006;
WHEREAS, pursuant to Section 8.4(b) of the Partnership Agreement, the Comcast Partners
delivered an Allocation Notice to the TWI Partners on July 3, 2006;
WHEREAS, pursuant to Section 8.4(c) of the Partnership Agreement, the TWI Partners delivered a
written notice to the Comcast Partners on August 1, 2006, identifying the Kansas & SW Asset Pool as
the Asset Pool selected by them to be distributed to them in connection with the Dissolution
Procedure;
WHEREAS, pursuant to Section 8.4(h)(ii) of the Partnership Agreement, the TWI Partners have
elected to have the Kansas & SW Asset Pool distributed to the TWI Assignee, as a designee (as
defined in Section 8.4(h)(v) of the Partnership Agreement) of the TWI Partners, and the Comcast
Partners have elected to have the
Houston Asset Pool distributed to the Comcast Assignee, as a designee (as defined in Section
8.4(h)(v) of the Partnership Agreement) of the Comcast Partners, in each case, in complete
redemption of the Interests (except to the extent relating to any TWI Delayed Asset or Comcast
Delayed Asset, as applicable) of such Partners in the Partnership, subject to the terms and
conditions of the Partnership Agreement and this Agreement;
WHEREAS, pursuant to Section 8.4(l) of the Partnership Agreement, the Partners, their
designees, the Partnership and the Subsidiaries, as appropriate, have agreed to execute and
deliver, in each case as of the Distribution Date with respect to the relevant Asset Pool, (i)
appropriate assignment agreements to effectuate the transfer of applicable Assets to the Receiving
Partners (or their designees or to a Subsidiary of the Partnership that will be transferred as
provided herein), (ii) appropriate assumption agreements pursuant to which the Receiving Partners
(or their designees or a Subsidiary of the Partnership that will be transferred as provided herein)
will assume all Liabilities (as defined therein) attributable to the Asset Pool being distributed
to them and (iii) appropriate indemnities to the other set of Related Partners for any losses such
Partners may suffer with respect to any of such Liabilities assumed by the Receiving Partners (or
their designees or a Subsidiary of the Partnership, as applicable);
WHEREAS, also pursuant to Section 8.4(l) of the Partnership Agreement, each set of Related
Partners has agreed to execute (or cause their designees to execute) other agreements and
instruments reasonably necessary to ensure an orderly winding up of the affairs of the Partnership
and its Subsidiaries, including customary agreements providing for cooperation with respect to
post-dissolution tax audits and controversies, sharing of information, record retention, and
defense of third-party claims;
WHEREAS, in accordance with Section 4.5(n) of the Partnership Agreement, the Partnership has
obtained the unanimous written consent of the members of the Management Committee to redeem the
entire Interest (except to the extent relating to any TWI Delayed Asset or Comcast Delayed Asset,
as applicable) of each Partner of the Partnership on the terms and subject to the conditions set
forth in the Partnership Agreement;
WHEREAS, in furtherance of the Dissolution Procedure and upon the terms and subject to the
conditions set forth herein, (A) (i) the Partnership shall directly or indirectly transfer all of
its (and its Subsidiaries’) interest in the TWI Transferred Assets (as defined herein) to the TWI
Assignee and the TWI Assignee shall accept such interest in the TWI Transferred Assets and (ii) the
Partnership shall redeem the entire Interest of each TWI Partner (except to the extent relating to
any TWI Delayed Asset) and (B) (i) the Partnership shall directly or indirectly transfer all of its
(and its Subsidiaries’) interest in the Comcast Transferred Assets (as defined herein) to the
Comcast Assignee and the Comcast Assignee shall accept such interest in the Comcast Transferred
Assets and (ii) the Partnership shall redeem the entire Interest (except to the extent relating to
any Comcast Delayed Asset) of each of Comcast Partner;
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WHEREAS, pursuant to Section 8.4(n) of the Partnership Agreement, the parties intend that (i)
the Kansas & SW Asset Pool shall be treated for U.S. federal income tax purposes as having been
distributed to the TWI Assignee in complete redemption of all Interests in the Partnership held by
the TWI Partners on August 1, 2006 and (ii) the Houston Asset Pool shall be treated for U.S.
federal income tax purposes as having been distributed to the Comcast Assignee in complete
redemption of all Interests in the Partnership held by the Comcast Partners on August 1, 2006; and
WHEREAS, upon the completion of the transactions contemplated by this Agreement and at the
time set forth herein, the Partners desire to wind up the Partnership and to cancel the certificate
of limited partnership of the Partnership in accordance with Section 17-203 of the DRULPA.
NOW, THEREFORE, in consideration of the mutual promises made herein and upon the terms and
subject to the conditions set forth herein, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, the following terms have the
following meanings.
(a) “Action” means any demand, action, suit, countersuit, arbitration, inquiry,
proceeding or investigation by or before any federal, state, local, foreign or international
Governmental Authority or any arbitration or mediation tribunal.
(b) “Agreement” has the meaning set forth in the preamble to this Agreement.
(c) “Assignees” has the meaning set forth in the preamble to this Agreement.
(d) “Assumed Liabilities” means the Comcast Assumed Liabilities and the TWI Assumed
Liabilities.
(e) “Base Interest Rate” means an interest rate per annum equal to the rate of
interest per annum publicly announced from time to time by JPMorgan Chase Bank as its prime rate
in effect at its principal office in New York City.
(f) “Xxxx of Sale” means the forms of Xxxx of Sale and Assignment and Assumption
Agreement attached hereto as Exhibit A and Exhibit C, as applicable.
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(g) “Business Day” means any day other than a Saturday or Sunday or a day on which
banks in New York, New York are authorized or required to be closed.
(h) “Comcast Assignee” has the meaning set forth in the preamble to this Agreement.
(i) “Comcast Assumed Liabilities” has the meaning set forth in Section 3.5 of this
Agreement.
(j) “Comcast Cash Amount” has the meaning set forth in Section 4.1(a) of this
Agreement.
(k) “Comcast Contracts” has the meaning set forth in Section 3.4(b)(i) of this
Agreement.
(l) “Comcast Delayed Asset” has the meaning set forth in Section 3.9 of this
Agreement.
(m) “Comcast Distributed Systems” has the meaning set forth in Section 3.4(a) of this
Agreement.
(n) “Comcast Distribution LLC” means Houston TKCCP Holdings, LLC, a Delaware limited
liability company that is a wholly owned Subsidiary of the Partnership.
(o) “Comcast Estimated Cash Amount” means $35,633,484.00, the estimated amount of cash
in the Houston Asset Pool as of the Distribution Date.
(p) “Comcast Excluded Taxes” means all Income Taxes, other than Pass-Through Entity
Level Income Taxes, relating to or arising out of, or resulting from the ownership or operation of
the Comcast Transferred Assets for taxable periods, or portions thereof, ending on or prior to the
date immediately preceding the Selection Date, other than Income Taxes suffered by the Comcast
Assignee or any of its Affiliates as a partner in the Partnership.
(q) “Comcast Excluded Telecom License Liabilities” has the meaning set forth in
Section 3.5(d) of this Agreement.
(r) “Comcast Fixed Assets” has the meaning set forth in Section 3.4(b)(iii) of this
Agreement.
(s) “Comcast Group” means each Comcast Transferred Subsidiary, Comcast Distribution
LLC, the Comcast Assignee and each other Comcast Partner, any of their respective Affiliates (after
giving effect to the transactions contemplated by this Agreement), and their respective successors
and assigns.
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(t) “Comcast Indemnifying Party” has the meaning set forth in Section 6.2 of this
Agreement.
(u) “Comcast Indemnitee” has the meaning set forth in Section 6.1 of this Agreement.
(v) “Comcast Properties” has the meaning set forth in Section 3.4(b)(ii) of this
Agreement.
(w) “Comcast Telecom License Liabilities” has the meaning set forth in Section 3.5(d)
of this Agreement.
(x) “Comcast Transferred Assets” has the meaning set forth in Section 3.4 of this
Agreement.
(y) “Comcast Transferred Subsidiary” means each of TCP Security Company LLC, a Texas
limited liability company, TCP-Charter Cable Advertising, LP, a Delaware limited partnership,
TCP/Conroe-Huntsville Cable Advertising, LP, a Delaware limited partnership, TKCCP/Cebridge Texas
Cable Advertising, LP, a Delaware limited partnership, and TWEAN-TCP Holdings LLC, a Delaware
limited liability company.
(z) “Contract” means any contract, lease, agreement, covenant, indenture, note,
security, instrument, arrangement, commitment or any other binding understanding, whether written
or oral.
(aa) “Damages” has the meaning set forth in Section 6.1 of this Agreement.
(bb) “Delayed Assets” means the Comcast Delayed Assets and the TWI Delayed Assets.
(cc) “Dissolution Date” means April 2, 2007 or such other date as shall be mutually
agreed by the Partners.
(dd) “Dissolution Document” means (i) any agreement or instrument contemplated by
Section 8.4(l) of the Partnership Agreement that the Partnership enters into in connection with the
Dissolution Procedure, including this Agreement, the Employee Matters Agreement, the Tax
Cooperation Letter, any Xxxx of Sale and any Real Property Instrument and (ii) any other agreement
or instrument that is entered into in connection with the Dissolution Procedure and is approved by
both the Comcast Partners and the TWI Partners.
(ee) “DRULPA” has the meaning set forth in the recitals to this Agreement.
(ff) “Employee Matters Agreement” means the Employee Matters Agreement, dated as of
the date hereof, by and among the Partnership, TWI
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Assignee, Comcast Assignee, each of the Partners, each of the TWI Transferred Subsidiaries,
each of the Comcast Transferred Subsidiaries and Comcast Distribution LLC.
(gg) “Equity Security” has the meaning ascribed to such term in Rule 405 promulgated
under the Securities Act of 1933 as in effect on the date hereof and, in any event, shall also
include (i) any capital stock of a corporation, any partnership interest, any limited liability
company interest and any other equity interest, as applicable; (ii) any security or indebtedness
having the attendant right to vote for directors or similar representatives; (iii) any security or
right convertible into, exchangeable for, or evidencing the right to subscribe for any such stock,
equity interest, security or indebtedness referred to in clause (i) or (ii); (iv) any stock
appreciation right, contingent value right or similar security or right that is derivative of any
such stock, equity interest, security or indebtedness referred to in clause (i), (ii) or (iii); and
(v) any contract to grant, issue, award, convey or sell any of the foregoing.
(hh) “Excepted Third Party Claim” means a Third Party Claim (a) for injunctive or
equitable relief against the Indemnitee, (b) in respect of which it is reasonably likely that,
based on the financial condition of the Indemnifying Party and the maximum amount of Liability that
could reasonably be expected to result from such Third Party Claim, the Indemnifying Party would
not possess the financial resources to satisfy such Liability or (c) in which the interests of the
Indemnifying Party and Indemnitee conflict.
(ii) “Franchise” means a written “franchise” within the meaning of Section 602(9) of
the Communications Act of 1934.
(jj) “Governmental Authority” means any supranational, national, state, municipal or
local government, political subdivision or other governmental department, court, commission, board,
bureau, agency, instrumentality, or other authority thereof, or any quasi-governmental or private
body exercising any regulatory, taxing, importing or other governmental or quasi-governmental
authority, whether domestic or foreign.
(kk) “Group” means the TWI Group or the Comcast Group as the context requires. Any
Person in a Group may be referred to as a “Member.”
(ll) “Income Taxes” shall mean any federal, state or local Tax which is based upon,
measured by, or calculated with respect to (i) net income or profits (including any capital gains
or minimum tax) or (ii) multiple bases (including corporate franchise, doing business or occupation
taxes), if one or more of the bases upon which such Tax may be calculated is described in clause
(i) hereof.
(mm) “Indemnification Payment” has the meaning set forth in Section 6.8 of this
Agreement.
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(nn) “Indemnifying Party” has the meaning set forth in Section 6.2 of this Agreement.
(oo) “Indemnitee” has the meaning set forth in Section 6.2 of this Agreement.
(pp) “Information” means information, whether or not patentable or copyrightable, in
written, oral, electronic or other tangible or intangible forms, stored in any medium, including
studies, reports, records, books, Contracts, instruments, surveys, discoveries, ideas, concepts,
know-how, techniques, designs, specifications, drawings, blueprints, diagrams, models, prototypes,
samples, flow charts, data, computer data, disks, diskettes, tapes, computer programs or other
software, marketing plans, customer names, communications by or to attorneys (including
attorney-client privileged communications), memos and other materials prepared by attorneys or
under their direction (including attorney work product) and other technical, financial, employee or
business information or data.
(qq) “Insurance Policy” has the meaning set forth in Section 9.4(a) of this Agreement.
(rr) “Insurance Proceeds” means those monies received by an insured from an insurance
carrier, or paid by an insurance carrier on behalf of an insured, in any such case net of any costs
or expenses incurred in the collection thereof.
(ss) “Law” means any foreign or domestic law, statute, code, ordinance, rule,
regulation, treaty, or judgment, enacted, entered or promulgated by a Governmental Authority.
(tt) “Partnership” has the meaning set forth in the preamble to this Agreement.
(uu) “Partnership Agreement” has the meaning set forth in the recitals to this
Agreement.
(vv) “Partnership Information” means any Information related to the Partnership,
including Information relating to either Asset Pool.
(ww) “Partnership Interest” means the entire ownership interest of a Partner in the
Partnership at any time, including the rights of such Partner to Partnership capital, income, loss,
distributions and other benefits to which such Partner may be entitled under the Partnership
Agreement, and the obligations of such Partner to comply with the applicable terms and provisions
of the Partnership Agreement.
(xx) “Pass-Through Entity” means an entity which, for federal Income Tax purposes, is
a partnership, disregarded entity or a grantor trust for federal Income Tax purposes.
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(yy) “Pass-Through Entity Level Income Taxes” shall mean Income Taxes of a
Pass-Through Entity or any entity owned directly or indirectly, in whole or in part, by such
Pass-Through Entity to the extent that such Income Taxes are imposed by Law on such entity and not
passed through to its owners by reason of such entity being a Pass-Through Entity.
(zz) “Real Property Instrument” has the meaning set forth in Section 2.9 of this
Agreement.
(aaa) “System” means a “cable television system” within the meaning of Section 602(7)
of the Communications Act of 1934.
(bbb) “Tax Cooperation Letter” means the Tax Cooperation Letter Agreement, dated
February 15, 2006, by and among the TWI Partners and the Comcast Partners.
(ccc) “Taxes” means all levies and assessments of any kind or nature imposed by any
Governmental Authority, including all income, sales, use, ad valorem, value added, franchise,
severance, net or gross proceeds, withholding, payroll, employment, F.I.C.A., excise or property
taxes, levies and any payment required to be made to any state abandoned property administrator or
other public official pursuant to an abandoned property, escheat or similar law, together with any
interest thereon and any penalties, additions to tax or additional amounts applicable thereto.
(ddd) “Telecom Licenses” has the meaning set forth in Section 3.4 of this Agreement.
(eee) “Third Party Claim” has the meaning set forth in Section 6.4(a) of this
Agreement.
(fff) “Transferred Assets” means the Comcast Transferred Assets and the TWI
Transferred Assets.
(ggg) “Time Warner Cable Marks” has the meaning set forth in Section 9.3 of this
Agreement.
(hhh) “TWI Assignee” has the meaning set forth in the preamble to this Agreement.
(iii) “TWI Assumed Liabilities” has the meaning set forth in Section 2.5 of this
Agreement.
(jjj) “TWI Contracts” has the meaning set forth in Section 2.4(b)(i) of this
Agreement.
(kkk) “TWI Delayed Asset” has the meaning set forth in Section 2.7 of this Agreement.
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(lll) “TWI Distributed Systems” has the meaning set forth in Section 2.4(a) of this
Agreement.
(mmm) “TWI Excluded Taxes” means all Income Taxes, other than Pass-Through Entity
Level Income Taxes, relating to or arising out of, or resulting from the ownership or operation of
the TWI Transferred Assets for taxable periods, or portions thereof, ending on or prior to the date
immediately preceding the Selection Date, other than Income Taxes suffered by the TWI Assignee or
any of its Affiliates as a partner in the Partnership.
(nnn) “TWI Fixed Assets” has the meaning set forth in Section 2.4(b)(iii) of this
Agreement.
(ooo) “TWI Group” means each TWI Transferred Subsidiary, the TWI Assignee and TWE-A/N
GP, any of their respective Affiliates (after giving effect to the transactions contemplated by
this Agreement), and their respective successors and assigns.
(ppp) “TWI Indemnifying Party” has the meaning set forth in Section 6.1 of this
Agreement.
(qqq) “TWI Indemnitee” has the meaning set forth in Section 6.2 of this Agreement.
(rrr) “TWI Properties” has the meaning set forth in Section 2.4(b)(ii) of this
Agreement.
(sss) “TWI Transferred Assets” has the meaning set forth in Section 2.4 of this
Agreement.
(ttt) “TWI Transferred Subsidiary” means each of KCCP Trust, a Delaware statutory
trust, Time Warner Cable Information Services (Kansas), LLC, a Delaware limited liability company,
Time Warner Cable Information Services (Missouri), LLC, a Delaware limited liability company, Time
Warner Information Services (Texas), L.P., a Delaware limited partnership, Time Warner
Cable/Comcast Kansas City Advertising, LLC, a Delaware limited liability company, and TCP/Comcast
Las Cruces Cable Advertising, LP, a Delaware limited partnership.
Section 1.2 Usage. The definitions in Article I shall apply equally to both the
singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. All references herein to
Articles, Sections, Exhibits and Schedules shall be deemed to be references to Articles and
Sections of, and Exhibits and Schedules to, this Agreement unless the context shall otherwise
require. All Exhibits and Schedules attached hereto shall be deemed incorporated herein as if set
forth in full herein and, unless otherwise defined therein, all terms used in any Exhibit or
Schedule shall have the meaning ascribed to such term in this Agreement. The words
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“include”, “includes” and “including” shall be deemed to be followed by the phrase “without
limitation.” The words “hereof”, “herein” and “hereunder” and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to any particular provision of this
Agreement. Unless otherwise expressly provided herein, and except for purposes of Section 10.2,
any agreement, instrument or statute defined or referred to herein or in any agreement or
instrument that is referred to herein means such agreement, instrument or statute as from time to
time amended, modified or supplemented, including (in the case of agreements or instruments) by
waiver or consent and (in the case of statutes) by succession of comparable successor statutes and
references to all attachments thereto and instruments incorporated therein.
ARTICLE II
ASSIGNMENT AND ASSUMPTION OF
KANSAS & SW ASSET POOL
ASSIGNMENT AND ASSUMPTION OF
KANSAS & SW ASSET POOL
Section 2.1 Transfer of Assets. Subject to Section 2.6, effective as of the date
hereof, the Partnership will assign, transfer, convey and deliver to the TWI Assignee, and the TWI
Assignee will accept from the Partnership all of the Partnership’s and its Subsidiaries’ respective
right, title and interest in and to the TWI Transferred Assets, as separately evidenced by a Xxxx
of Sale and Assignment and Assumption Agreement substantially in the form attached hereto as
Exhibit A and the Real Property Instruments referred to in Section 2.9.
Section 2.2 Assumption of Liabilities. Effective as of the date hereof, the TWI
Assignee will absolutely and irrevocably assume and agree to be liable and responsible to pay when
due, perform and discharge, all the TWI Assumed Liabilities (except to the extent such TWI Assumed
Liabilities are Liabilities of a TWI Transferred Subsidiary, in which case such TWI Transferred
Subsidiary shall retain such TWI Assumed Liabilities), in accordance with their respective terms,
as separately evidenced by a Xxxx of Sale and Assignment and Assumption Agreement substantially in
the form attached hereto as Exhibit A. The TWI Assignee shall be responsible for all TWI
Assumed Liabilities (except to the extent such TWI Assumed Liabilities are Liabilities of a TWI
Transferred Subsidiary, in which case such TWI Transferred Subsidiary shall be responsible for such
TWI Assumed Liabilities), regardless of when or where such TWI Assumed Liabilities arose or arise,
or whether the facts on which they are based occurred prior to, on or subsequent to the date
hereof, regardless of where or against whom such Liabilities are asserted or determined or whether
asserted or determined prior to the date hereof, and regardless of whether arising from or alleged
to arise from negligence, recklessness, violation of Law, fraud or misrepresentation or any other
cause by a Member of any Group or any of their respective Subsidiaries, directors, officers,
employees or agents or Affiliates. The TWI Assignee hereby agrees (and shall cause each TWI
Transferred Subsidiary) to be bound by all obligations of the TWI Partners in accordance with
Section 8.4(h)(v) of the Partnership Agreement, and the TWI Partners agree to be jointly and
severally liable with the TWI Assignee and each TWI Transferred Subsidiary for their obligations
under the Dissolution Documents. The TWI Assumed Liabilities shall not include the TWI Excluded
Taxes.
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Section 2.3 Time of Transfers. The transactions contemplated by Sections 2.1 and 2.2
above shall be effected as of 12:00:45 a.m. CST on the date hereof.
Section 2.4 TWI Transferred Assets. For purposes of this Agreement, “TWI
Transferred Assets” means the Telecom Licenses and all of the Assets included in the Kansas &
SW Asset Pool and shall include, to the extent part of Kansas & SW Asset Pool:
(a) the Systems and Franchises set forth on Exhibit B (the “TWI Distributed
Systems”);
(b) all Assets of the Partnership and its Subsidiaries primarily related to the TWI
Distributed Systems, including:
(i) all rights under the Contracts listed on Schedule 2.4(b)(i) (the “TWI
Contracts”);
(ii) the real property described on Schedule 2.4(b)(ii) (the “TWI
Properties”);
(iii) the fixed Assets described on Schedule 2.4(b)(iii) (the “TWI Fixed
Assets”); and
(c) the Shared Assets described on Schedule 2.4(c).
Section 2.5 TWI Assumed Liabilities. For purposes of this Agreement, “TWI Assumed
Liabilities” means all Liabilities related to the Telecom Licenses (other than the Comcast
Telecom License Liabilities) and all Liabilities included in the Kansas & SW Asset Pool and shall
include, to the extent otherwise part of the Kansas & SW Asset Pool:
(a) all Liabilities (other than Debt) of the Partnership and any of its Subsidiaries that are
primarily related to the TWI Distributed Systems, including:
(i) all obligations under the TWI Contracts;
(ii) all Liabilities primarily related to the TWI Properties;
(iii) all Liabilities primarily related to the TWI Fixed Assets;
(b) all Debt described on Schedule 2.5(b); and
(c) 50% of Other Liabilities, including those described on Schedule 2.5(c).
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Section 2.6 Transfer of Equity Interests. Notwithstanding Sections 2.1 and 2.2, the
Partners agree that any TWI Transferred Assets to be assigned, transferred, conveyed and delivered
hereunder and any TWI Assumed Liabilities to be assumed hereunder, shall, if such Asset is owned
directly by a TWI Transferred Subsidiary (including any Telecom Licenses) or such Liability is the
direct obligation of a TWI Transferred Subsidiary, be transferred or assumed, as applicable, by
transferring, directly or indirectly, free and clear of any liens or encumbrances (other than those
that are Liabilities of the Kansas & SW Pool), all of the Equity Securities held directly or
indirectly by the Partnership in the TWI Transferred Subsidiary that owns such TWI Transferred
Assets or is directly subject to such TWI Assumed Liabilities, as applicable, provided,
that, if such TWI Transferred Subsidiary directly owns any Assets that are not TWI Transferred
Assets or is subject to any Liabilities other than TWI Assumed Liabilities, such Assets and
Liabilities shall be assigned to or assumed by the Partnership prior to the transfer of such Equity
Securities. Except as set forth in the preceding sentence, Assets will be assigned, transferred,
conveyed and delivered directly and Liabilities will be assumed directly.
Section 2.7 TWI Delayed Assets. Notwithstanding any other provision of this
Agreement, any TWI Transferred Asset (other than any TWI Transferred Asset held by any TWI
Transferred Subsidiary), the assignment, transfer, conveyance or delivery of which without the
consent, authorization, approval or waiver of a third party would constitute a breach or other
contravention of Law or such TWI Transferred Asset or in any way adversely affect the rights of the
Partnership, any of its applicable Subsidiaries, the Partners or the TWI Assignee thereunder (a
“TWI Delayed Asset”), shall not be assigned, transferred, conveyed or delivered until the
earlier of (i) such time as such consent, authorization, approval or waiver is obtained and (ii)
immediately prior to the dissolution of the Partnership on the Dissolution Date, at which time such
TWI Delayed Asset shall, pursuant to the Xxxx of Sale and Assignment and Assumption Agreement, be
automatically assigned, transferred, conveyed or delivered without further action on the part of
the Partnership, its applicable Subsidiaries, the Partners or the TWI Assignee. Until the earlier
of (i) such time as such consent, authorization, approval or waiver is obtained and (ii)
immediately prior to the dissolution of the Partnership on the Dissolution Date, (A) the
Partnership (and its applicable Subsidiaries), the Partners and the TWI Assignee shall use all
commercially reasonable efforts to obtain the relevant consent, authorization, approval or waiver,
(B) the Partnership (and its applicable Subsidiaries) shall endeavor to provide the TWI Assignee
with the benefits under each TWI Delayed Asset as if such TWI Delayed Asset had been assigned to
the TWI Assignee, including preserving the benefits of and enforcing for the benefit of the TWI
Assignee, at the TWI Assignee’s expense, any and all rights of the Partnership or any of its
applicable Subsidiaries under such TWI Delayed Asset, and (C) to the extent permissible with
respect to such TWI Delayed Asset, the TWI Assignee shall (1) be responsible for the obligations of
the Partnership or its applicable Subsidiaries with respect to such TWI Delayed Asset and (2) act
as the agent of the Partnership or its applicable Subsidiaries in preserving the benefits of and
enforcing any and all rights of the Partnership or its applicable Subsidiaries in such TWI Delayed
Asset. Notwithstanding any other provision in this Agreement or the Partnership Agreement to
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the contrary, any TWI Delayed Asset shall be deemed a TWI Transferred Asset for purposes of
determining whether any Liability is a TWI Assumed Liability. Following the assignment, transfer,
conveyance and delivery of any TWI Delayed Asset, the applicable TWI Delayed Asset shall be treated
for all purposes of this Agreement and the other Dissolution Documents as a TWI Transferred Asset.
Section 2.8 Novation of TWI Assumed Liabilities. The Partnership, the applicable
Subsidiaries and the TWI Partners, at the reasonable written request of the Comcast Partners, shall
use their reasonable commercial efforts to obtain, or to cause to be obtained, any release,
consent, substitution, approval or amendment required to novate and assign all obligations under
agreements, leases, licenses and other obligations or Liabilities of any nature whatsoever that
constitute TWI Assumed Liabilities, or to obtain in writing the unconditional release of all
parties to such arrangements other than the TWI Assignee (or the applicable TWI Transferred
Subsidiary), so that, in any such case, the TWI Assignee (or the applicable TWI Transferred
Subsidiary) will be solely responsible for such Liabilities; provided however, that
none of the Members of any Group shall be obligated to pay any additional consideration or
undertake any additional obligations to any third party from whom any such release, consent,
approval, substitution or amendment is requested or to surrender, release or modify any material
rights or remedies in order to obtain any such release, consent, approval, substitution or
amendment.
Section 2.9 Documents Relating to Transfer of Real Property Interests. To the extent
necessary, in furtherance of the assignment, transfer and conveyance of the TWI Transferred Assets
and the assumption of the related TWI Assumed Liabilities, on the date hereof (to the extent
practicable) or as soon as practicable after the date hereof, each of the Partnership, its
Subsidiaries and the TWI Assignee, will execute and deliver such deeds, lease assignments and
assumptions, leases, subleases and sub-subleases, transfer tax returns, affidavits and similar
instruments as may be necessary to effect the transactions contemplated by this Agreement
(collectively, the “Real Property Instruments”), provided that the Real Property
Instruments need not be delivered to the extent that the real property included in the TWI
Transferred Assets is already owned by or held in the name of any TWI Transferred Subsidiary. The
applicable Real Property Instruments will be on mutually acceptable terms.
Section 2.10 Misallocated Assets or Liabilities. In the event that at any time or
from time to time, the Partnership or any Comcast Group Member shall receive or otherwise possess
any Asset or be subject to any Liability that is allocated to the TWI Assignee (or any TWI
Transferred Subsidiary, as applicable) pursuant to this Agreement or any other Dissolution Document
(including receipt or possession of such Assets or assumption of such Liabilities as a result of a
failure to comply with Section 8.4(e) of the Partnership Agreement), such Person shall promptly
transfer, or cause to be transferred, such Asset or Liability to the TWI Assignee (or the
applicable TWI Transferred Subsidiary). Prior to any such transfer, the Person receiving or
possessing such Asset or being subject to such Liability shall hold such Asset or Liability in
trust for the TWI Assignee (or the applicable TWI Transferred Subsidiary).
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ARTICLE III
ASSIGNMENT AND ASSUMPTION OF
HOUSTON ASSET POOL
ASSIGNMENT AND ASSUMPTION OF
HOUSTON ASSET POOL
Section 3.1 Transfer of Assets. Subject to Section 3.2, Section 3.6 and Section 4.1,
effective as of the date hereof, the Partnership will assign, transfer, convey and deliver to
Comcast Distribution LLC, and Comcast Distribution LLC will accept from the Partnership, all of the
Partnership’s and its Subsidiaries’ respective right, title and interest in and to the Comcast
Transferred Assets, as separately evidenced by a Xxxx of Sale and Assignment and Assumption
Agreement substantially in the form attached hereto as Exhibit C and the Real Property
Instruments referred to in Section 3.11.
Section 3.2 Transfer of Comcast Estimated Cash. On December 29, 2006, the Partnership
assigned, transferred, conveyed and delivered the Comcast Estimated Cash Amount to an account of
Comcast Distribution LLC.
Section 3.3 Assumption of Liabilities. Effective as of the date hereof, Comcast
Distribution LLC will absolutely and irrevocably assume and agree to be liable and responsible to
pay when due, perform and discharge, all the Comcast Assumed Liabilities (except to the extent such
Comcast Assumed Liabilities are Liabilities of a Comcast Transferred Subsidiary, in which case such
Comcast Transferred Subsidiary shall retain such Comcast Assumed Liabilities), in accordance with
their respective terms, as separately evidenced by a Xxxx of Sale and Assignment and Assumption
Agreement substantially in the form attached hereto as Exhibit C. Comcast Distribution LLC
shall be responsible for all Comcast Assumed Liabilities (except to the extent such Comcast Assumed
Liabilities are Liabilities of a Comcast Transferred Subsidiary, in which case such Comcast
Transferred Subsidiary shall be responsible for such Comcast Assumed Liabilities), regardless of
when or where such Comcast Assumed Liabilities arose or arise, or whether the facts on which they
are based occurred prior to, on or subsequent to the date hereof, regardless of where or against
whom such Liabilities are asserted or determined or whether asserted or determined prior to the
date hereof, and regardless of whether arising from or alleged to arise from negligence,
recklessness, violation of Law, fraud or misrepresentation or any other cause by a Member of any
Group or any of their respective Subsidiaries, directors, officers, employees or agents or
Affiliates. The Comcast Assignee hereby agrees (and shall cause each Comcast Transferred
Subsidiary) to be bound by all obligations of the Comcast Partners in accordance with Section
8.4(h)(v) of the Partnership Agreement, and the Comcast Partners agree to be jointly and severally
liable with the Comcast Assignee for its obligations under the Dissolution Documents. The Comcast
Assumed Liabilities shall not include the Comcast Excluded Taxes.
Section 3.4 Comcast Transferred Assets. For purposes of this Agreement, “Comcast
Transferred Assets” means all of the Assets included in the Houston Asset Pool and shall
include, to the extent part of Houston Asset Pool:
(a) the Systems and Franchises set forth on Exhibit D (the “Comcast Distributed
Systems”);
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(b) all Assets of the Partnership and its Subsidiaries primarily related to the Comcast
Distributed Systems, including:
(i) all rights under the Contracts listed on Schedule 3.4(b)(i) (the
“Comcast Contracts”);
(ii) the real property described on Schedule 3.4(b)(ii) (the “Comcast
Properties”);
(iii) the fixed Assets described on Schedule 3.4(b)(iii) (the “Comcast
Fixed Assets”); and
(c) the Shared Assets described on Schedule 3.4(c), it being understood that the
parties have agreed that the cash and cash equivalent portion thereof shall be paid in accordance
with Section 4.1;
provided that notwithstanding anything herein or in the Partnership Agreement to the contrary, the
Comcast Transferred Assets shall not include any consent, authorization or approval issued by the
FCC or any state Governmental Authority authorizing or permitting the provision of telephony
services (“Telecom Licenses”) and no such Telecom Licenses will be treated as part of the
Houston Asset Pool or the Houston Business.
Section 3.5 Comcast Assumed Liabilities. For purposes of this Agreement, “Comcast
Assumed Liabilities” means all Liabilities included in the Houston Asset Pool and shall
include, to the extent otherwise part of the Houston Asset Pool:
(a) all Liabilities (other than Debt) of the Partnership and any of its Subsidiaries that are
primarily related to the Comcast Distributed Systems, including:
(i) all obligations under the Comcast Contracts;
(ii) all Liabilities primarily related to the Comcast Properties;
(iii) all Liabilities primarily related to the Comcast Fixed Assets;
(b) all Debt described on Schedule 3.5(b); and
(c) 50% of Other Liabilities, including those described on Schedule 3.5(c);
(d) all Liabilities under any Telecom License arising, or relating to any period (or any
portion thereof) ending, prior to the Distribution Date but only to the extent related to the
Houston Asset Pool (the “Comcast Telecom License Liabilities”); provided that
notwithstanding anything herein or in the Partnership
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Agreement to the contrary, the Comcast Assumed Liabilities shall not include any Liabilities
under any Telecom License to the extent (i) arising, or relating to any period (or any portion
thereof) ending, on or after the Distribution Date (except in respect of the portion of any such
period that is prior to the Distribution Date) or (ii) not related to the Houston Asset Pool (the
“Comcast Excluded Telecom License Liabilities”), and no such Comcast Excluded Telecom
License Liability will be treated as a part of the Houston Asset Pool.
Section 3.6 Transfer of Equity Interests. Notwithstanding Section 3.1 and Section
3.3, the Partners agree that any Comcast Transferred Assets to be assigned, transferred, conveyed
and delivered hereunder and any Comcast Assumed Liabilities to be assumed hereunder, shall, if such
Asset is owned directly by a Comcast Transferred Subsidiary or such Liability is the direct
obligation of a Comcast Transferred Subsidiary, be transferred or assumed, as applicable, by
transferring, directly or indirectly, free and clear of any liens or encumbrances (other than those
that are Liabilities of the Houston Asset Pool), all of the Equity Securities held directly or
indirectly by the Partnership in the Comcast Transferred Subsidiary that directly owns such Comcast
Transferred Assets or is directly subject to such Comcast Assumed Liabilities, as applicable,
provided, that, if such Comcast Transferred Subsidiary owns any Assets that are not Comcast
Transferred Assets or is subject to any Liabilities other than Comcast Assumed Liabilities, such
Assets and Liabilities shall be assigned to or assumed by the Partnership prior to the transfer of
such Equity Securities. Except as set forth in the preceding sentence, Assets will be assigned,
transferred, conveyed and delivered directly and Liabilities will be assumed directly.
Section 3.7 Transfer of LLC Interest. Immediately after the transactions contemplated
by Sections 3.1 and 3.3 are effected, the Partnership will transfer to the Comcast Assignee, free
and clear of any liens or encumbrances (other than those that are Liabilities of the Houston Asset
Pool), all of the Equity Securities in Comcast Distribution LLC.
Section 3.8 Time of Transfers. The transactions contemplated by (i) Sections 3.1 and
3.3 above shall be effected as of 12:00:30 a.m. CST on the date hereof and (ii) Section 3.7 above
shall be effected as of 12:00:45 a.m. CST on the date hereof.
Section 3.9 Comcast Delayed Assets. Notwithstanding any other provision of this
Agreement, any Comcast Transferred Asset (other than any Comcast Transferred Asset held by any
Comcast Transferred Subsidiary), the assignment, transfer, conveyance or delivery of which to
Comcast Distribution LLC (or, following such assignment, transfer, conveyance or delivery, the
transfer of the Equity Securities of Comcast Distribution LLC to Comcast Assignee) without the
consent, authorization, approval or waiver of a third party would constitute a breach or other
contravention of Law or such Comcast Transferred Asset or in any way adversely affect the rights of
the Partnership, any of its applicable Subsidiaries, Comcast Distribution LLC, the Partners or the
Comcast Assignee thereunder (a “Comcast Delayed Asset”), shall not be assigned,
transferred, conveyed or delivered to Comcast Distribution LLC until the earlier of (i)
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such time as such consent, authorization, approval or waiver is obtained and (ii) immediately
prior to the dissolution of the Partnership on the Dissolution Date, at which time such Comcast
Delayed Asset shall, pursuant to the Xxxx of Sale and Assignment and Assumption Agreement, be
automatically assigned, transferred, conveyed or delivered without further action on the part of
the Partnership, its applicable Subsidiaries, Comcast Distribution LLC, the Partners or the Comcast
Assignee. Until the earlier of (i) such time as such consent, authorization, approval or waiver is
obtained and (ii) immediately prior to the dissolution of the Partnership on the Dissolution Date,
(A) the Partnership (and its applicable Subsidiaries), Comcast Distribution LLC, the Partners and
the Comcast Assignee shall use all commercially reasonable efforts to obtain the relevant consent,
authorization, approval or waiver, (B) the Partnership (and its applicable Subsidiaries) shall
endeavor to provide Comcast Distribution LLC with the benefits under each Comcast Delayed Asset as
if such Comcast Delayed Asset had been assigned to Comcast Distribution LLC, including preserving
the benefits of and enforcing for the benefit of Comcast Distribution LLC, at Comcast Distribution
LLC’s expense, any and all rights of the Partnership or any of its applicable Subsidiaries under
such Comcast Delayed Asset, and (C) to the extent permissible with respect to such Comcast Delayed
Asset, Comcast Distribution LLC shall (1) be responsible for the obligations of the Partnership or
its applicable Subsidiaries with respect to such Comcast Delayed Asset and (2) act as the agent of
the Partnership or its applicable Subsidiaries in preserving the benefits of and enforcing any and
all rights of the Partnership or its applicable Subsidiaries in such Comcast Delayed Asset.
Notwithstanding any other provision in this Agreement or the Partnership Agreement to the contrary,
any Comcast Delayed Asset shall be deemed a Comcast Transferred Asset for purposes of determining
whether any Liability is a Comcast Assumed Liability. Following the assignment, transfer,
conveyance and delivery of any Comcast Delayed Asset, the applicable Comcast Delayed Asset shall be
treated for all purposes of this Agreement and the other Dissolution Documents as a Comcast
Transferred Asset.
Section 3.10 Novation of Comcast Assumed Liabilities. The Partnership, the applicable
Subsidiaries, Comcast Distribution LLC and the Comcast Partners, at the reasonable written request
of the TWI Partners, shall use their reasonable commercial efforts to obtain, or to cause to be
obtained, any release, consent, substitution, approval or amendment required to novate and assign
all obligations under agreements, leases, licenses and other obligations or Liabilities of any
nature whatsoever that constitute Comcast Assumed Liabilities, or to obtain in writing the
unconditional release of all parties to such arrangements other than Comcast Distribution LLC (or
the applicable Comcast Transferred Subsidiary), so that, in any such case, Comcast Distribution LLC
(or the applicable Comcast Transferred Subsidiary) will be solely responsible for such Liabilities;
provided however, that none of the Members of any Group shall be obligated to pay
any additional consideration or undertake any additional obligations to any third party from whom
any such release, consent, approval, substitution or amendment is requested or to surrender,
release or modify any material rights or remedies in order to obtain any such release, consent,
approval, substitution or amendment.
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Section 3.11 Documents Relating to Transfer of Real Property Interests. To the extent
necessary, in furtherance of the assignment, transfer and conveyance of the Comcast Transferred
Assets and the assumption of the related Comcast Assumed Liabilities, on the date hereof (to the
extent practicable) or as soon as practicable after the date hereof, each of the Partnership, its
Subsidiaries and Comcast Distribution LLC, will execute and deliver Real Property Instruments;
provided that the Real Property Instruments need not be delivered to the extent that the
real property included in the Comcast Transferred Assets is already owned by or held in the name of
any Comcast Transferred Subsidiary. The applicable Real Property Instruments will be on mutually
acceptable terms.
Section 3.12 Misallocated Assets or Liabilities.
(a) In the event that at any time or from time to time, the Partnership or any TWI Group
Member shall receive or otherwise possess any Asset or be subject to any Liability that is
allocated to Comcast Distribution LLC (or any Comcast Transferred Subsidiary, as applicable)
pursuant to this Agreement or any other Dissolution Document (including receipt or possession of
such Assets or assumption of such Liabilities as a result of a failure to comply with Section
8.4(e) of the Partnership Agreement), such Person shall promptly transfer, or cause to be
transferred, such Asset or Liability to Comcast Distribution LLC (or the applicable Comcast
Transferred Subsidiary). Prior to any such transfer, the Person receiving or possessing such Asset
or being subject to such Liability shall hold such Asset or Liability in trust for Comcast
Distribution LLC (or the applicable Comcast Transferred Subsidiary). For the avoidance of doubt,
the parties agree that those Contracts set forth on Schedule 3.12 (i) are not Comcast
Transferred Assets and the Liabilities thereunder are not Comcast Assumed Liabilities and (ii)
shall not be subject to this Section 3.12(a), shall remain a Contract of the applicable Affiliate
of the TWI Group, shall not be transferred to or assumed by Comcast Distribution LLC (or any
Comcast Transferred Subsidiary) and shall not be held in trust for Comcast Distribution LLC (or any
Comcast Transferred Subsidiary), unless otherwise expressly agreed to by the parties hereto.
(b) In the event that as of the date hereof any TWI Group Member other than the Partnership or
any of its Subsidiaries is a party to any Contract used primarily in the Houston Business and used
exclusively by one or more cable television systems serving areas exclusively located in the
Houston DMA, such Person shall promptly transfer, or cause to be transferred, such Contract to
Comcast Distribution LLC (or the applicable Comcast Transferred Subsidiary), subject to the receipt
of any necessary consent. Prior to any such transfer, such TWI Group Member shall hold such
Contract in trust for Comcast Distribution LLC (or the applicable Comcast Transferred Subsidiary).
The parties agree that any such Contract which, after giving effect to the transfer under this
Section 3.12(b), is between Comcast Distribution LLC (or the applicable Comcast Transferred
Subsidiary), on the one hand, and a member of the TWI Group, on the other hand, shall terminate
without penalty no later than 120 days after the Distribution Date. For the avoidance of doubt,
those Contracts set forth on Schedule 3.12 shall not be subject to this Section 3.12(b),
shall remain a Contract of the applicable
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Affiliate of the TWI Group, shall not be transferred to or assumed by Comcast Distribution LLC
(or any Comcast Transferred Subsidiary) and shall not be held in trust for Comcast Distribution LLC
(or any Comcast Transferred Subsidiary), unless otherwise expressly agreed to by the parties
hereto.
ARTICLE IV
CASH OF HOUSTON ASSET POOL
CASH OF HOUSTON ASSET POOL
Section 4.1 Cash of Houston Asset Pool.
(a) Pursuant to Section 3.2, an amount of cash equal to the Comcast Estimated Cash Amount was
transferred to Comcast Distribution LLC on December 29, 2006, and pursuant to Section 3.7, all of
the interests in Comcast Distribution LLC will be transferred to the Comcast Assignee. The Comcast
Estimated Cash Amount is TWC’s good faith estimate of the amount of cash in the Houston Asset Pool
as of the Distribution Date taking into account, among other things, the amount of cash of the
Houston Asset Pool (including its share of cash constituting Shared Assets) as of the Allocation
Date and the net cash generated by the Houston Asset Pool since that date taking into account the
cash revenues of the Houston Asset Pool and the cash expenditures of the Houston Asset Pool,
including those necessary to pay off intercompany payables of the Houston Asset Pool. The parties
acknowledge and agree that the amount of cash of the Houston Asset Pool as of the Distribution Date
after settlement of the net intercompany balance of the Houston Asset Pool as of the Distribution
Date (the “Comcast Cash Amount”) cannot be finally determined as of the date hereof
(including as a result of the fact that the net intercompany balance of the Houston Asset Pool as
of the Distribution Date has not been finally determined as of the date hereof) and the parties
agree to cooperate in good faith to determine such amount. From time to time as the facts
establish that the amount transferred to the Comcast Group (taking into account transfers under
Section 3.2 and this sentence) in respect of the Comcast Cash Amount is not accurate, the TWI
Partners will make a payment to the Comcast Partners or the Comcast Partners will make a payment to
the TWI Partners, as applicable, in an amount necessary to adjust for such inaccuracy. Each
payment under the preceding sentence will include interest at the Base Interest Rate from and
including the Distribution Date to but excluding the date of payment.
(b) For the avoidance of doubt, except as set forth in Section 4.1(a) regarding the timing of
the payment of the intercompany account balance of the Houston Asset Pool, the provisions of
Section 8.4(e) of the Partnership Agreement shall remain in full force and effect.
(c) The parties agree, for all Income Tax purposes, to treat any amounts paid pursuant to
Section 4.1(a) of this Agreement, to the extent designated as interest, in the same manner as
provided for interest payments in Section 8.4(t) of the Partnership Agreement. Amounts paid
pursuant to Section 4.1(a) of this Agreement and not described in the immediately preceding
sentence shall be treated as repayment of principal amounts of the obligations described in Section
8.4(e) of the Partnership Agreement, and shall be treated as made between the same parties as are
the
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corresponding payments of interest attributable to periods beginning on or after the Selection
Date.
ARTICLE V
REDEMPTION OF PARTNERSHIP INTEREST
REDEMPTION OF PARTNERSHIP INTEREST
Section 5.1 Redemption.
(a) Effective as of the date hereof, the Partnership hereby redeems the entire Interest held
by each Partner, except to the extent relating to any TWI Delayed Asset or Comcast Delayed Asset,
as applicable, and each such Partner hereby transfers and delivers such portion of its Interest to
the Partnership. As Delayed Assets are transferred pursuant to Section 2.7 or 3.9 after the date
hereof, the applicable portion of the Interests held by the applicable Related Partners will,
concurrent with such transfers, automatically be redeemed, transferred and delivered without
further action on the part of the Partnership, Comcast Assignee, Comcast Distribution LLC or TWI
Assignee consistent with the preceding sentence and this Agreement.
(b) After giving effect to each redemption under Section 5.1(a), each set of Related Partners
whose Interests were not redeemed in full pursuant to Section 5.1(a) shall remain Partners of the
Partnership and all Interests held by them shall be economic interests solely in the Asset Pool or
remaining Delayed Assets intended to be distributed to such set of Related Partners in accordance
with Section 8.4 of the Partnership Agreement and Section 2.7 or Section 3.9 (as applicable) which
interest shall be allocated among the members of such set of Related Partners in proportion to the
allocation of Interests held by such Related Partners immediately prior to giving effect to such
redemption. Notwithstanding that a set of Related Partners’ entire Interest may have been redeemed
in full pursuant to Section 5.1(a), each of the Comcast Partners and TWI Partners is hereby granted
a non-economic interest in the Partnership that is allocated among the Comcast Partners and the TWI
Partners in proportion to the allocation of Interests held by such Related Partners immediately
prior to giving effect to the redemptions contemplated by this Section 5.1, and shall remain a
partner until the Partnership is dissolved in accordance with Article VII. For the avoidance of
doubt, none of the TWI Partners shall have any economic interest or rights in respect of the
Houston Asset Pool and none of the Comcast Partners shall have any economic interest or rights in
respect of the Kansas & SW Asset Pool. The Partnership Agreement will be deemed to be amended to
reflect the arrangements described in this Article V.
ARTICLE VI
INDEMNIFICATION
INDEMNIFICATION
Section 6.1 TWI Indemnities. The TWI Assignee and the TWI Partners (collectively, the
“TWI Indemnifying Parties”) shall jointly and severally indemnify, defend and hold harmless
the Comcast Partners, Comcast Distribution LLC and the Comcast Transferred Subsidiaries, their
respective successors, assigns and Affiliates, and their respective officers, directors, agents and
employees (collectively, the
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“Comcast Indemnitees”) from and against all claims, losses, Liabilities, demands,
obligations, actions, penalties, expenses and costs (including reasonable attorneys’ fees and
expenses, including any such fees and expenses incurred in enforcing this indemnity) (collectively,
“Damages”) which may be made or brought against a Comcast Indemnitee or which a Comcast
Indemnitee may suffer or incur as a result of, based upon or arising out of, (i) any of the TWI
Transferred Assets, TWI Delayed Assets, TWI Assumed Liabilities or TWI Delayed Liabilities; (ii)
operation of the Kansas & SW Business after the date hereof or (iii) any breach of the covenants or
obligations made or to be performed by a TWI Indemnifying Party under the Dissolution Documents;
provided, that, a Comcast Indemnitee shall not be entitled to indemnification under this
Section 6.1 to the extent the relevant Damages arose from any Comcast Indemnitee’s gross
negligence, willful misconduct or breach of the Partnership Agreement, the Management Agreement or
any Dissolution Document.
Section 6.2 Comcast Indemnities. The Comcast Assignee, Comcast Distribution LLC and
the Comcast Partners (collectively, the “Comcast Indemnifying Parties”, and together with
the TWI Indemnifying Parties, the “Indemnifying Parties”) shall jointly and severally
indemnify, defend and hold harmless the TWI Partners and the TWI Transferred Subsidiaries, their
respective successors, assigns and Affiliates, and their respective officers, directors, agents and
employees (collectively, the “TWI Indemnitees”, and together with the Comcast Indemnitees,
the “Indemnitees”) from and against all Damages which may be made or brought against a TWI
Indemnitee or which a TWI Indemnitee may suffer or incur as a result of, based upon or arising out
of, (i) any of the Comcast Transferred Assets, Comcast Delayed Assets, Comcast Assumed Liabilities
or Comcast Delayed Liabilities; (ii) operation of the Houston Business after the date hereof or
(iii) any breach of the covenants or obligations made or to be performed by a Comcast Indemnifying
Party under the Dissolution Documents; provided, that, a TWI Indemnitee shall not be
entitled to indemnification under this Section 6.2 to the extent the relevant Damages arose from
any TWI Indemnitee’s gross negligence, willful misconduct or breach of the Partnership Agreement,
the Management Agreement or any Dissolution Document.
Section 6.3 Indemnification Obligations Net of Insurance Proceeds and Other Amounts.
(a) The parties intend that any indemnification or reimbursement obligation pursuant to this
Agreement or any other Dissolution Document will be net of Insurance Proceeds that actually reduce
the amount of any Liability. Accordingly, the amount which any Indemnifying Party is required to
pay to any Indemnitee will be reduced by any Insurance Proceeds theretofore actually recovered by
or on behalf of the Indemnitee in reduction of the related Liability. If an Indemnitee receives an
Indemnification Payment from an Indemnifying Party in respect of any Liability and subsequently
receives Insurance Proceeds, then the Indemnitee will pay to the Indemnifying Party an amount equal
to the excess of the Indemnification Payment received over the amount of the Indemnification
Payment that would have been due if the
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Insurance Proceeds had been received, realized or recovered before the Indemnification Payment
was made.
(b) Notwithstanding anything herein to the contrary, the parties intend that any covered
claims under workers compensation, auto liability and general liability insurance policies continue
to be administered in the ordinary course of business and if any Indemnitee that is a beneficiary
of such a policy submits claims to the carrier and is then obligated to reimburse the carrier for
any amounts (including deductibles) advanced by the carrier to employees or third parties in
respect of such claim or for any expenses or costs of the carrier in connection with such claim,
such amounts actually reimbursed to such carrier by such Indemnitee shall be subject to
indemnification under Section 6.1 or 6.2, as applicable (to the extent such Damage claim relates to
the items subject to indemnification thereunder), without regard to the procedures set forth in
Section 6.4; provided that (in the case of a TWI Indemnitee) simultaneous with or promptly
following submission of such claim to the carrier the Indemnitee provides the Indemnifying Party
with notice of such claim and the Indemnifying Party has not notified the Indemnitee and the
carrier that it is assuming defense of such claim pursuant to Section 6.4 sufficiently in advance
of any payment by the carrier or the Indemnitee in respect of such claim so as to have avoided such
Damage to the Indemnitee.
(c) An insurer who would otherwise be obligated to defend or make payment in response to any
claim shall not be relieved of the responsibility with respect thereto or, solely by virtue of the
indemnification provisions hereof, have any subrogation rights with respect thereto, it being
expressly understood and agreed that no insurer or any other third party shall be entitled to a
“windfall” (i.e., a benefit it would not be entitled to receive in the absence of the
indemnification provisions) by virtue of the indemnification provisions hereof.
(d) With respect to all Insurance Policies, the parties agree to act in good faith and to use
their reasonable best efforts to preserve and maximize the insurance benefits due to be provided
thereunder and to cooperate with one another as necessary to permit each other to access or obtain
the benefits under those policies; provided, however, that nothing in this Section
6.3 shall be construed to prevent any party or any other Person from asserting claims for insurance
benefits or accepting insurance benefits provided by the policies. The parties agree to exchange
information upon reasonable request of the other party regarding requests that they have made for
insurance benefits, notices of claims, occurrences and circumstances that they have submitted to
the insurance companies or other entities managing the policies, responses they have received from
those insurance companies or entities, including any payments they have received from the insurance
companies and any agreements by the insurance companies to make payments, and any other information
that the parties may need to determine the status of the Insurance Policies and the continued
availability of benefits thereunder.
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Section 6.4 Procedures for Indemnification of Third Party Claims.
(a) If an Indemnitee shall receive notice or a senior officer of the Indemnitee shall learn of
the assertion by a Person (including any Governmental Authority) who is not a Member of either
Group of any claim or of the commencement by any such Person of any Action (collectively, a
“Third Party Claim”) with respect to which an Indemnifying Party may be obligated to
provide indemnification to such Indemnitee pursuant to Section 6.1 or 6.2, or any other Section of
this Agreement or any Dissolution Document (except as otherwise provided therein), such Indemnitee
shall give such Indemnifying Party prompt written notice thereof. Any such notice shall describe
the Third Party Claim in reasonable detail. Notwithstanding the foregoing, the failure of any
Indemnitee to give notice as provided in this Section 6.4(a) shall not relieve the related
Indemnifying Party of its obligations under this Agreement or any Dissolution Document, except to
the extent that such Indemnifying Party is actually prejudiced by such failure to give notice.
(b) An Indemnifying Party may elect to defend (and, except as set out in clause (e) below,
unless the Indemnifying Party has specified any reservations or exceptions, to seek to settle or
compromise), at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel
(provided such counsel is reasonably acceptable to the Indemnitee), any Third Party Claim;
provided that notwithstanding the foregoing, an Indemnitee may elect to defend any Excepted
Third Party Claim and the Indemnifying Party shall have the right to elect to defend such Excepted
Third Party Claim only if the Indemnitee does not elect to do so. Within 30 days after the receipt
of notice from an Indemnitee in accordance with Section 6.4(a) (or sooner, if the nature of such
Third Party Claim so requires), the Indemnifying Party shall notify the Indemnitee of its election
whether the Indemnifying Party will assume responsibility for defending such Third Party Claim,
which election shall specify any reservations or exceptions. After notice from an Indemnifying
Party to an Indemnitee of its election to assume the defense of a Third Party Claim, such
Indemnitee shall have the right to employ separate counsel and to participate in (but not control)
the defense, compromise, or settlement thereof, but the fees and expenses of such counsel shall be
the expense of such Indemnitee, except as set forth in the next sentence. In the event that the
Indemnifying Party has elected to assume the defense of the Third Party Claim but has specified and
continues to assert, any reservations or exceptions in such notice, then, in any such case, the
reasonable fees and expenses of one separate counsel (and one separate local counsel) for all
Indemnitees shall be borne by the Indemnifying Party.
(c) If an Indemnifying Party elects not to assume responsibility for defending a Third Party
Claim, or fails to notify an Indemnitee of its election as provided in Section 6.4(b), or in the
case of an Excepted Third Party Claim, such Indemnitee may defend such Third Party Claim at the
reasonable cost and expense of the Indemnifying Party and the Indemnifying Party shall not settle
or compromise any such Third Party Claim.
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(d) Unless the Indemnifying Party has failed to assume the defense of the Third Party Claim in
accordance with the terms of this Agreement, no Indemnitee may settle or compromise any Third Party
Claim (including any Excepted Third Party Claim) without the consent of the Indemnifying Party (not
to be unreasonably withheld), unless such Indemnitee has waived any rights to indemnification
hereunder in respect of such Third Party Claim.
(e) Without the consent of the Indemnitee (which consent shall not be unreasonably withheld),
the Indemnifying Party shall not enter into or consent to any settlement or compromise of any Third
Party Claim, unless such settlement or compromise involves only the payment of money damages
concurrently with such settlement (and such amount is so paid by the Indemnifying Party), does not
impose any equitable relief upon the Indemnitee or any of its Affiliates, or any of its or their
respective officers or directors, contains an unconditional release of the Indemnitee, each of its
Affiliates and each of its and their respective officers or directors in respect of such claim,
does not include an admission of responsibility by the Indemnitee, any of its Affiliates or any of
its and their respective officers or directors in respect of such claim and shall remain
confidential.
Section 6.5 Additional Matters.
(a) Any claim on account of a Liability that does not result from a Third Party Claim shall be
asserted by written notice given by the Indemnitee to the related Indemnifying Party. Such
Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to
respond thereto (or sooner, if the nature of such claim so requires). If such Indemnifying Party
does not respond within such period, such Indemnifying Party shall be deemed to have refused to
accept responsibility to make payment. If such Indemnifying Party does not respond within such
period or rejects such claim in whole or in part, such Indemnitee shall be free to pursue such
other remedies as may be available to such party.
(b) In the event of payment by or on behalf of any Indemnifying Party to any Indemnitee in
connection with any Third Party Claim, such Indemnifying Party shall be subrogated to and shall
stand in the place of such Indemnitee as to any events or circumstances in respect of which such
Indemnitee may have any right, defense or claim relating to such Third Party Claim against any
claimant or plaintiff asserting such Third Party Claim or against any other Person but only to the
extent of such payment. Such Indemnitee shall cooperate with such Indemnifying Party in a
reasonable manner, and at the reasonable cost and expense of such Indemnifying Party, in
prosecuting any subrogated right, defense or claim.
(c) In the event of an Action in which the Indemnifying Party is not a named defendant, if
either the Indemnitee (in the case where the Indemnifying Party has not specified any reservations
or exceptions) or Indemnifying Party shall so request, the parties shall endeavor to substitute the
Indemnifying Party for the named defendant, if at all practicable. If such substitution or
addition cannot be achieved for any reason or is not requested, the named defendant shall allow the
Indemnifying Party to
24
manage the Action as set forth in Section 6.4 and the Indemnifying Party shall fully indemnify
the named defendant against all Liabilities in connection therewith, including costs of defending
the Action (including court costs, sanctions imposed by a court, attorneys’ fees, experts’ fees and
all other external expenses), the costs of any judgment or settlement, and the cost of any interest
or penalties relating to any judgment or settlement.
Section 6.6 Remedies Cumulative. The remedies provided in this Article VI shall be
cumulative and shall not preclude assertion by any Indemnitee of any other rights or the seeking of
any and all other remedies against any Indemnifying Party.
Section 6.7 Survival of Indemnities. The rights and obligations of each Partner and
their respective Indemnitees under this Article VI shall survive the sale or other transfer by any
party of any Assets or the assignment by it of any Liabilities.
Section 6.8 Tax Effects of Indemnification. For all Tax purposes (unless required by
a change in applicable Tax law or good faith resolution of a contest), the parties hereto agree to
treat, and to cause their respective Affiliates to treat any amounts paid to a party pursuant to an
indemnification, reimbursement or refund obligation provided for in this Agreement (an
“Indemnification Payment”) (i) as having been part of the Asset Pool which has been or is
intended to be distributed, as applicable, to the Assignee of the Partner that is entitled to
receive such Indemnification Payment, and (ii) as not being part of the Asset Pool which has been
or is intended to be distributed, as applicable, to the Assignee of the Partner that is required to
make such Indemnification Payment, in each case as of the Allocation Date.
ARTICLE VII
DISSOLUTION OF PARTNERSHIP
DISSOLUTION OF PARTNERSHIP
Section 7.1 Dissolution. On the Dissolution Date (i) all right, title and interest of
the Partnership in any remaining Delayed Assets will be automatically transferred to, or as
directed by, the TWI Assignee or the Comcast Assignee, as applicable, (ii) any remaining interests
in the Partnership will be automatically redeemed and (iii) immediately thereafter the Partnership
shall be dissolved in accordance with the Partnership Agreement and the DRULPA.
Section 7.2 Certificate of Cancellation. The General Manager shall file or shall
cause to be filed with the Office of the Secretary of State of the State of Delaware a certificate
of cancellation in accordance with Section 17-203 of the DRULPA and effective as of the Dissolution
Date, which certificate shall set forth: (i) the name of the Partnership, (ii) the date of filing
of the Partnership’s certificate of limited partnership, (iii) the effective date and time of
cancellation of the Partnership’s certificate of limited partnership and (iv) such other
information as the General Manager shall reasonably determine necessary or appropriate.
25
ARTICLE VIII
EXCHANGE OF INFORMATION; CONFIDENTIALITY
EXCHANGE OF INFORMATION; CONFIDENTIALITY
Section 8.1 Agreement for Exchange of Information.
(a) Each Group agrees to provide, or cause to be provided, to the other Group, at any time
after the date hereof, as soon as reasonably practicable after written request therefor, any
Partnership Information in the possession or under the control of such respective Group that the
requesting party reasonably needs (i) to comply with reporting, disclosure, filing or other
requirements imposed on the requesting party (including under applicable securities or Tax laws) by
a Governmental Authority having jurisdiction over the requesting party, (ii) for use in any other
judicial, regulatory, administrative, Tax or other proceeding or in order to satisfy audit,
accounting, claims, regulatory, litigation, Tax or other similar requirements, (iii) to comply with
its obligations under this Agreement or any other Dissolution Document or (iv) for any other proper
purpose; provided, however, that in the event that either Group determines that any
such provision of Partnership Information could be commercially detrimental, violate any Law or
agreement, or waive any attorney-client privilege, the parties shall take all reasonable measures
to permit the compliance with such obligations in a manner that avoids any such harm or
consequence. The parties intend that any transfer of Information that would otherwise be within
the attorney-client privilege shall not operate as a waiver of any potentially applicable
privilege.
(b) After the date hereof, each Group shall maintain in effect adequate systems and controls
to the extent necessary to enable the Members of the other Group to satisfy their respective
reporting, accounting, audit and other obligations.
Section 8.2 Ownership of Information. Any Information owned by one Group that is
provided to the other Group pursuant to Section 8.1 shall be deemed to remain the property of the
providing Group. Unless specifically set forth herein, nothing contained in this Agreement shall
be construed as granting or conferring rights of license or otherwise in any such Information.
Section 8.3 Compensation for Providing Information. The Group requesting such
Information agrees to reimburse the other Group for the reasonable third party out-of-pocket costs,
if any, of creating, gathering and copying such Information, to the extent that such costs are
incurred for the benefit of the requesting Group. Except as may be otherwise specifically provided
elsewhere in this Agreement or in any other agreement between the parties, such costs shall be
computed in accordance with the providing party’s standard methodology and procedures.
Section 8.4 Record Retention. To facilitate the possible exchange of Information
pursuant to this Article VIII and other provisions of this Agreement after the date hereof, the
parties agree to use their commercially reasonable efforts to retain all Information in their
respective possession or control on the date hereof in accordance with their respective record
retention policies as in effect on the date hereof. No party will destroy, or permit any of its
Subsidiaries to destroy, any Information that any other
26
party may have the right to obtain pursuant to this Agreement prior to the third anniversary
of the date hereof without first using its commercially reasonable efforts to notify the other
parties of the proposed destruction and giving the other parties the opportunity to take possession
of such Information prior to such destruction; provided, however, that in the case
of any Information relating to Taxes, employee-related matters or to environmental liabilities,
such period shall be extended to the expiration of the applicable statute of limitations (giving
effect to any extensions thereof). Moreover, no party will destroy, or permit any of its
Subsidiaries to destroy, any policies of insurance (or records related to such insurance policies
that are necessary to be retained in order to preserve the right of recovery under such policies)
without first using its commercially reasonable efforts to notify the other parties of the proposed
destruction and giving the other parties reasonable opportunity to take possession of such
Information prior to such destruction, if it is possible (in the first party’s reasonable judgment)
that the other parties may be able to obtain coverage under such policies. (The foregoing includes
“occurrence”-based liability policies, which continue to cover liability for alleged harm during
their policy period, even if no claim is made based on such alleged harm until after the end of the
policy period.)
Section 8.5 Limitation of Liability. No party shall have any Liability to any other
party in the event that any Information exchanged or provided pursuant to this Agreement that is an
estimate or forecast, or that is based on an estimate or forecast, is found to be inaccurate, in
the absence of willful misconduct by the party providing such Information. No party shall have any
Liability to any other party if any Information is destroyed after commercially reasonable efforts
by such party to comply with the provisions of Section 8.4.
Section 8.6 Other Agreements Providing for Exchange of Information. The rights and
obligations granted under this Article VIII are subject to any specific limitations, qualifications
or additional provisions on the sharing, exchange or confidential treatment of information set
forth in any Dissolution Document.
Section 8.7 Production of Witnesses; Records; Cooperation.
(a) After the date hereof, except in the case of an adversarial Action by one party against
the other party (which shall be governed by such discovery rules as may be applicable thereto),
each party hereto shall take all reasonable steps to make available to the other party, upon
written request, the former, current and future directors, officers, employees, other personnel and
agents of the Members of its respective Group (whether as witnesses or otherwise) and any books,
records or other documents within its control or that it otherwise has the ability to make
available, to the extent that such person (giving consideration to business demands of such
directors, officers, employees, other personnel and agents) or books, records or other documents
may reasonably be required in connection with any Action (including preparation for such Action) in
which the requesting party may from time to time be involved, regardless of whether such Action is
a matter with respect to which indemnification may be sought
27
hereunder. The requesting party shall bear all reasonable costs and expenses in connection
therewith.
(b) If an Indemnifying Party chooses to defend or to seek to compromise or settle any Third
Party Claim, or if any party chooses or is required to prosecute, pursue, otherwise evaluate or
defend any Action, the other party shall reasonably cooperate in such defense, settlement or
compromise, or such prosecution, evaluation or pursuit, as the case may be. The requesting party
shall bear all reasonable costs and expenses in connection therewith.
(c) Without limiting the foregoing, the parties shall cooperate and consult to the extent
reasonably necessary with respect to any Actions.
(d) The obligation of the parties to make available former, current and future directors,
officers, employees, other personnel and agents pursuant to this Section 8.7 is intended to be
interpreted in a manner so as to facilitate cooperation and shall include the obligation to make
available inventors and other officers without regard to whether such individual or the employer of
such individual could assert a possible business conflict (subject to the exception set forth in
the first sentence of Section 8.7(a)). Without limiting the foregoing, each party agrees that
neither it nor any Member of its respective Group will take any adverse action against any employee
of its Group based on such employee’s provision of assistance or information to the other party
pursuant to Section 8.7(a).
(e) In connection with any Action contemplated by this Article VIII, the parties will enter
into a mutually acceptable joint defense agreement so as to maintain to the extent practicable any
applicable attorney-client privilege or work product immunity of either Group.
Section 8.8 Confidentiality.
(a) Subject to Section 8.9 and 10.1, each Member of each Group agrees to hold, and to cause
its respective directors, officers, employees, agents, accountants, counsel and other advisors and
representatives to hold, in strict confidence, with at least the same degree of care that it
applies to its respective Group’s own confidential and proprietary information pursuant to policies
in effect as of the date hereof, all Information concerning the other Group (and the Asset Pool
being transferred to such Group) that is either in its possession (including Information in its
possession prior to and as of the date hereof) or furnished by the other Group or its respective
directors, officers, employees, agents, accountants, counsel and other advisors and representatives
at any time pursuant to this Agreement, or any Dissolution Document, and shall not use any such
Information other than for such purposes as shall be expressly permitted hereunder or thereunder,
except, in each case, to the extent that such Information has been (i) in the public domain through
no fault of such party or such party’s Group or any of their respective directors, officers,
employees, agents, accountants, counsel and other advisors and representatives, (ii) later lawfully
acquired from other sources by such party (or such party’s Group), which sources are not
28
themselves bound by a confidentiality obligation to the knowledge of such party or Members of
such party’s Group or (iii) independently generated without reference to any proprietary or
confidential Information of the other Group.
(b) Each party agrees not to release or disclose, or permit any member of its Group to release
or disclose, any such Information concerning the other Group (or the Asset Pool being transferred
to the other Group) to any other Person, except its directors, officers, employees, agents,
accountants, counsel and other advisors and representatives who need to know such Information (who
shall be advised of their obligations hereunder with respect to such Information; provided,
that, the disclosing party shall be responsible for any breach of this Section 8.8 by such Person
to whom it disclosed or released any Information concerning the other Group (or the Asset Pool
being transferred to the other Group)) and in compliance with Section 8.9 and Section 10.1.
Without limiting the foregoing, when any Information held by one Group concerning the other Group
(or the Asset Pool being transferred to the other Group) is no longer needed for the purposes
contemplated by this Agreement or any Dissolution Document, each member of the first Group will,
except as otherwise required by Law, promptly after request of the other Group either return to the
other Group all such Information in a tangible form (including all copies thereof and all notes,
extracts or summaries based thereon) or certify to the other Group that it has destroyed such
Information (and all electronic or other copies thereof and all notes, extracts or summaries based
thereon).
Section 8.9 Protective Arrangements. In the event that any party or any Member of its
Group either determines on the advice of its counsel that it is required to disclose any
Information concerning the other Group (or the Asset Pool being transferred to the other Group)
pursuant to applicable Law or receives any demand under lawful process or from any Governmental
Authority to disclose or provide Information concerning the other Group (or the Asset Pool being
transferred to the other Group) that is subject to the confidentiality provisions hereof, such
party shall notify the other Group prior to disclosing or providing such Information and shall
cooperate at the expense of the requesting party in seeking any reasonable protective arrangements
requested by such other party. Subject to the foregoing, the Person that received such request may
thereafter disclose or provide Information to the extent required by such Law (as so advised by
counsel) or by lawful process or such Governmental Authority.
ARTICLE IX
COVENANTS
COVENANTS
Section 9.1 Further Assurances.
(a) In addition to the actions specifically provided for elsewhere in this Agreement and the
other Dissolution Documents, but subject to the provisions hereof and thereof, each of the parties
hereto shall use its commercially reasonable efforts to take, or cause to be taken, all actions,
and to do, or cause to be done, all things, reasonably necessary, proper or advisable under
applicable laws, regulations
29
and agreements to consummate and make effective the transactions contemplated by this
Agreement and the other Dissolution Documents.
(b) Without limiting the foregoing each party hereto shall cooperate with the other party, and
without any further consideration, to execute and deliver, or use its commercially reasonable
efforts to cause to be executed and delivered, all instruments, including instruments of
conveyance, assignment and transfer, and to make all filings with, and to obtain all consents,
approvals or authorizations of, any Governmental Authority or any other Person under any permit,
license, agreement, indenture or other instrument, and to take all such other actions as such party
may reasonably be requested to take by any other party hereto from time to time, consistent with
the terms of this Agreement and the other Dissolution Documents, in order to effectuate the
provisions and purposes of this Agreement and the other Dissolution Documents and the transfers of
the Transferred Assets, the assignment and assumption of the Assumed Liabilities and the other
transactions contemplated hereby and thereby.
Section 9.2 Transitional Services. Concurrently herewith, certain of the parties
and/or their Affiliates are entering into transitional services agreements relating to each
respective Asset Pool.
Section 9.3 Use of Names and Logos. For a period of 150 days after the date hereof,
the Comcast Group shall be entitled to use the trademarks, trade names, service marks, service
names, logos and similar proprietary rights of TWC and its Affiliates to the extent incorporated in
or on the Comcast Transferred Assets and not part of the Comcast Transferred Assets (collectively,
the “Time Warner Cable Marks”), provided, that (a) the Comcast Group acknowledges that the
Time Warner Cable Marks belong to TWC and its Affiliates, and that the Comcast Group shall not
acquire any rights therein during or pursuant to such 150 day period; (b) all such Comcast
Transferred Assets shall be used in a manner consistent with the use made by the Partnership prior
to the date hereof; (c) the Comcast Group shall exercise reasonable efforts to remove all Time
Warner Cable Marks from the Comcast Transferred Assets as soon as reasonably practicable following
the date hereof; and (d) the use of the Time Warner Cable Marks during such period shall inure to
the benefit of TWC; provided, that Comcast Group shall indemnify and hold harmless TWC for any
Liabilities arising from or otherwise relating to the Comcast Group’s use of the Time Warner Cable
Marks. Upon expiration of such 150-day period, the Comcast Group will remove all Time Warner Cable
Marks from the Comcast Transferred Assets and destroy all unused letterhead, checks,
business-related forms, preprinted form contracts, product literature, sales literature, labels,
packaging material and any other materials displaying the Time Warner Cable Marks within ten
Business Days. Notwithstanding the foregoing, the Comcast Group shall not be required to remove or
discontinue using any such proprietary rights that are affixed to converters or other items located
in customer homes or properties such that prompt removal is impracticable for the Comcast Group;
provided, that the Comcast Group shall remove or discontinue such proprietary rights
promptly upon the return of such converters or other items to their possession.
30
Section 9.4 Insurance.
(a) The parties intend that Comcast Distribution LLC, after the date hereof, shall be
successor-in-interest to and retain all rights and interest (whether known, unknown, contingent or
otherwise) that any of the parties or any of their Affiliates have as of the date hereof under any
policies of title, property, fire, casualty, liability, life, workers’ compensation, libel and
slander, and other forms of insurance of any kind to the extent they relate to the Houston Asset
Pool and are maintained by or on the behalf of TWE or its Affiliates, including any rights or
interests each has, as an insured, named insured, or additional named insured, Subsidiary,
Affiliate, division or department, to avail itself of any benefit under any such Insurance Policy
or any such agreement related to such policy, in each case which are in force as of the date hereof
(each, an “Insurance Policy”). The provisions of this Agreement are not intended to
relieve any insurer of any Liability under any policy. Notwithstanding the foregoing, TWE shall
not be deemed to have made any representation or warranty as to the availability of any Insurance
Policy or the rights and benefits provided thereunder.
(b) This Agreement shall not be considered as an attempted assignment of (if such an
assignment would be prohibited or would otherwise adversely affect the rights of the insured
parties under such policies) any rights or interest under any policy of insurance or as a contract
of insurance and shall not be construed to waive any right or remedy of any party in respect of any
Insurance Policy or any other contract or policy of insurance.
(c) TWE does hereby agree that, as and to the extent necessary to give effect to Section
9.4(a), it will assign any chose in action, claim, right or benefit under an Insurance Policy.
(d) Subject to Section 9.4(e), each of the parties does hereby agree that all duties and
obligations under any Insurance Policy, including the fulfillment of any conditions and the payment
of any deductibles, retentions, co-insurance payment or retrospective premiums, that correspond in
any way with or may be necessary to perfect, preserve or maintain an insured’s right to obtain
benefits under that Insurance Policy, will be performed by the insured that is seeking the
benefits, subject to the indemnification provisions of Article VI. In the event Members of both
Groups have claims under a given policy, any deductibles, retentions, co-insurance payments,
retrospective premiums, caps, limitations on average and similar items will be appropriately
allocated between such parties based on the recoveries they would have obtained in the absence of
such items.
(e) TWE will use commercially reasonable efforts to take such actions as are necessary to
cause insurance policies of TWE and its Affiliates that immediately prior to the date hereof
provide coverage to or with respect to the Houston Asset Pool to continue to provide such coverage
with respect to acts, omissions, and events occurring prior to the date hereof in accordance with
their terms as if the transactions contemplated by the Dissolution Documents had not occurred;
provided, that, to the extent TWE takes any action with respect to its umbrella insurance policies
31
that similarly affects all of the Kansas & SW Asset Pool but results in such insurance
coverage no longer being available (other than a change denying coverage based upon a Person
ceasing to be an Affiliate of TWE), TWE shall not be deemed to have breached this Section 9.4 and
shall have no liability with respect thereto. TWE will give the Comcast Assignee written notice of
the taking of any such action if done during the first 12 months after the date hereof prior to
such action or as soon as practicable thereafter. TWE shall, and shall cause its Affiliates to,
cooperate with and assist Comcast Distribution LLC, if Comcast Distribution LLC determines to make
any claim under any such policy with respect to any act, omission or event prior to the date
hereof. Comcast Distribution LLC shall use commercially reasonable efforts to promptly notify TWE
when it becomes aware of any such claim; provided, that the failure of Comcast Distribution
LLC to provide such notice shall not relieve TWE of its obligations under this Section 9.4, except
to the extent that TWE’s rights under the applicable insurance policy are prejudiced by such
failure to give notice.
ARTICLE X
MISCELLANEOUS
Section 10.1 Certain Covenants. Notwithstanding any other provision of this
Agreement, from and after the date hereof, (i) the non-compete provisions of Section 6.2 of the
Partnership Agreement shall remain in effect for one year after the date hereof for each set of
Related Partners and its Cable Affiliates only as to the municipalities included in the Asset Pool
intended to be distributed to the other set of Related Partners and (ii) the confidentiality
obligations set forth in Section 6.3 of the Partnership Agreement shall remain in effect for each
set of Related Partners only as to matters relating to the Asset Pool intended to be distributed to
the other set of Related Partners. For the avoidance of doubt, and notwithstanding any other
provision of this Agreement or the other Dissolution Documents (except to the extent expressly
inconsistent with this Agreement or any Dissolution Documents), the covenants contained in Sections
5.4(a), 8.4(d), 8.4(e), 8.4(g), 8.4(l), 8.4(m), 8.4(n), 8.4(o), 8.4(q), 8.4(r), 8.4(s), 8.4(t),
8.4(u), 8.4(v), 8.4(y), 10.13, 10.14 and 10.15 of the Partnership Agreement shall, to the extent
applicable (and subject to express amendment thereto as provided in Section 10.2 hereof), survive
execution and delivery of this Agreement and the dissolution and winding up of the Partnership in
accordance with the terms and conditions as set forth in the Partnership Agreement.
Section 10.2 Amendment to the Partnership Agreement. The sixth sentence of Section
8.4(l) of the Partnership Agreement is hereby deemed amended by inserting “other than, in the case
of the Houston Asset Pool, the one described on Schedule 8.4(l) hereto” after the words “commercial
agreement or arrangement” and a Schedule 8.4(l) is hereby deemed to be attached to the Partnership
Agreement disclosing the following:
“Capacity License Agreement dated as of July 1, 1998 by and among the Houston Division of Time
Warner Entertainment-Advance/Xxxxxxxx Partnership, as Licensor, and Time Warner Communications of
Houston, L.P. as Licensee.”
32
Section 10.3 Employee Matters. Notwithstanding any other provision of this Agreement
but except as provided in Section 10.1 of this Agreement, the other Dissolution Documents or the
Partnership Agreement, all employee-related matters in connection with the Dissolution Procedure
shall be governed exclusively by the Employee Matters Agreement except as expressly provided
therein.
Section 10.4 Expenses. (a) Except as otherwise provided in this Agreement, the other
Dissolution Documents or the Partnership Agreement, any costs incurred by the Partnership in
connection with the Dissolution Procedure shall be shared equally by the Triggering Partners and
the Non-Triggering Partners; provided that each set of Related Partners shall be
responsible for the costs of its own legal counsel and the costs associated with refinancing any
Debt allocated to the Asset Pool to be distributed to such set of Related Partners.
(b) All sales, use, transfer and similar taxes or assessments, including transfer fees and
similar assessments for Transferred Assets arising from or payable by reason of or otherwise
related to the transfers contemplated by this Agreement shall be paid one-half by the TWI Assignee
and one-half by the Comcast Assignee (it being understood and agreed that if any such payable is
satisfied by a party or any Affiliate thereof, then, promptly after the demand of the paying party,
the other party shall reimburse the paying party for one-half of any such amounts paid by the
paying party).
Section 10.5 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE (OTHER THAN ITS RULES OF CONFLICTS OF LAW TO THE
EXTENT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY).
Section 10.6 Amendments. No provisions of this Agreement shall be deemed waived,
amended, supplemented or modified by any party, unless such waiver, amendment, supplement or
modification is in writing and signed by the authorized representative of the party against whom
such waiver, amendment, supplement or modification it is sought to be enforced.
Section 10.7 Entire Agreement. This Agreement, the other Dissolution Documents and
the Exhibits and Schedules hereto and thereto contain the entire agreement between the parties with
respect to the subject matter hereof or thereof, supersede all previous agreements, negotiations,
discussions, writings, understandings, commitments and conversations with respect to such subject
matter and there are no agreements or understandings between the parties other than those set forth
or referred to herein or therein.
Section 10.8 Binding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and assigns;
provided, however, that no party hereto may assign its respective rights or
delegate its respective obligations under this Agreement without the express prior written consent
of each of the other parties hereto.
33
Section 10.9 Headings. The headings in this Agreement are for convenience of
reference only, and shall not be deemed to alter or affect the meaning or interpretation of any
provisions hereof.
Section 10.10 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall constitute one and the same
agreement.
Section 10.11 Notices. Any notice, request, demand or other communication required or
permitted to be given under this Agreement will be in writing and will be deemed to have been duly
given only if delivered in person or by first class, prepaid, registered or certified mail, or sent
by courier or, if receipt is confirmed, by telecopier:
If to any TWI Group Member:
000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
Telecopy No: (000) 000-0000
With a Required Copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxx
Telecopy No: (000) 000-0000
If to any Comcast Group Member:
c/o Comcast Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: General Counsel
Telecopy No: (000) 000-0000
With a Required Copy to:
00
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopy No: (000) 000-0000
or to such other address as any party shall have last designated by notice to the other parties, as
the case may be. All notices will be deemed to have been received on the date of delivery, which
in the case of deliveries by telecopier, will be the date of the sender’s confirmation.
Section 10.12 Performance. The Comcast Partners will cause the Members of the Comcast
Group to perform their obligations hereunder. The TWI Partners will cause the Members of the TWI
Group to perform their obligations hereunder.
Section 10.13 Certain Representations. The Comcast Partners and the TWI Partners each
represent to the other that, (i) with respect to each of Comcast Distribution LLC and KCCP Trust,
neither such Partners nor any of their Affiliates have taken any action, or caused the Partnership
to take any action, the result of which is to cause Comcast Distribution LLC or KCCP Trust, as the
case may be, to be treated as an entity that is separate and apart from its owner for U.S. federal
Income Tax purposes and (ii) with respect to Comcast Distribution LLC, neither such Partners nor
any of their Affiliates have caused Comcast Distribution LLC to conduct any business or activities
not primarily related to the business of the Houston Asset Pool.
[Remainder of Page Intentionally Left Blank]
35
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the day and year first above written.
THE PARTNERSHIP: | ||||||||
TEXAS AND KANSAS CITY CABLE PARTNERS, L.P. | ||||||||
By: | /s/ Xxxxx X. X’Xxxxx | |||||||
Name: Xxxxx X. X’Xxxxx | ||||||||
Title: Executive Vice President — Investments | ||||||||
COMCAST ASSIGNEE: | ||||||||
COMCAST TCP HOLDINGS, INC. | ||||||||
By: | /s/ Xxxxxx X. Block | |||||||
Name: Xxxxxx X. Block | ||||||||
Title: Senior Vice President | ||||||||
TWI ASSIGNEE: | ||||||||
TIME WARNER ENTERTAINMENT-ADVANCE/XXXXXXXX PARTNERSHIP |
||||||||
By: | TWE-A/N HOLDCO, L.P., its | |||||||
Managing Partner | ||||||||
By: | /s/ Xxxxx X. X’Xxxxx | |||||||
Name: Xxxxx X. X’Xxxxx | ||||||||
Title: Executive Vice President — Investments |
PARTNERS: | ||||||||
TIME WARNER ENTERTAINMENT-ADVANCE/XXXXXXXX PARTNERSHIP |
||||||||
By: | TWE-A/N HOLDCO, L.P., its | |||||||
Managing Partner | ||||||||
By: | /s/ Xxxxx X. X’Xxxxx | |||||||
Name: Xxxxx X. X’Xxxxx | ||||||||
Title: Executive Vice President — Investments | ||||||||
TWE-A/N TEXAS CABLE PARTNERS GENERAL PARTNER LLC |
||||||||
By: | /s/ Xxxxx X. X’Xxxxx | |||||||
Name: Xxxxx X. X’Xxxxx | ||||||||
Title: Executive Vice President — Investments | ||||||||
TCI TEXAS CABLE HOLDINGS LLC | ||||||||
By: | COMCAST TCP HOLDINGS, INC., | |||||||
its sole member | ||||||||
By: | /s/ Xxxxxx X. Block | |||||||
Name: Xxxxxx X. Block | ||||||||
Title: Senior Vice President |
TCI TEXAS CABLE, LLC | ||||||||
By: | COMCAST TCP HOLDINGS, INC., | |||||||
its sole member | ||||||||
By: | /s/ Xxxxxx X. Block | |||||||
Name: Xxxxxx X. Block | ||||||||
Title: Senior Vice President | ||||||||
COMCAST TCP HOLDINGS, INC. | ||||||||
By: | /s/ Xxxxxx X. Block | |||||||
Name: Xxxxxx X. Block | ||||||||
Title: Senior Vice President | ||||||||
COMCAST TCP HOLDINGS, LLC | ||||||||
By: | COMCAST TCP HOLDINGS, INC., | |||||||
its sole member | ||||||||
By: | /s/ Xxxxxx X. Block | |||||||
Name: Xxxxxx X. Block | ||||||||
Title: Senior Vice President |
TWI TRANSFERRED SUBSIDIARIES: | ||||||||
KCCP TRUST | ||||||||
By: | TEXAS AND KANSAS CITY CABLE PARTNERS, L.P., | |||||||
its sole beneficial owner | ||||||||
By: | /s/ Xxxxx X. X’Xxxxx | |||||||
Name: Xxxxx X. X’Xxxxx | ||||||||
Title: Executive Vice President — Investments | ||||||||
TIME WARNER CABLE INFORMATION SERVICES (KANSAS), LLC |
||||||||
By: | TIME WARNER CABLE LLC, its | |||||||
Managing Member | ||||||||
By: | /s/ Xxxxx X. X’Xxxxx | |||||||
Name: Xxxxx X. X’Xxxxx | ||||||||
Title: Executive Vice President — Investments | ||||||||
TIME WARNER CABLE INFORMATION SERVICES (MISSOURI), LLC |
||||||||
By: | TIME WARNER ENTERTAINMENT | |||||||
COMPANY, L.P., its Managing Member | ||||||||
By: | /s/ Xxxxx X. X’Xxxxx | |||||||
Name: Xxxxx X. X’Xxxxx | ||||||||
Title: Executive Vice President — Investments |
TIME WARNER CABLE INFORMATION SERVICES (TEXAS), L.P. | ||||||||||
By: | TEXAS INFORMATION SERVICES | |||||||||
GENERAL PARTNER LLC, its General Partner |
||||||||||
By: | TIME WARNER CABLE LLC, | |||||||||
its sole member | ||||||||||
By: | /s/ Xxxxx X. X’Xxxxx | |||||||||
Name: Xxxxx X. X’Xxxxx | ||||||||||
Title: Executive Vice President — Investments | ||||||||||
TIME WARNER CABLE/COMCAST KANSAS CITY ADVERTISING, LLC |
||||||||||
By: | KCCP TRUST, its Managing Member | |||||||||
By: | TEXAS AND KANSAS CITY | |||||||||
CABLE PARTNERS, L.P., its sole beneficial owner | ||||||||||
By: | /s/ Xxxxx X. X’Xxxxx | |||||||||
Name: Xxxxx X. X’Xxxxx | ||||||||||
Title: Executive Vice President — Investments |
TCP/COMCAST LAS CRUCES CABLE ADVERTISING, LP | ||||||||||
By: | TWEAN-TCP HOLDINGS LLC, its general partner |
|||||||||
By: | TEXAS AND KANSAS CITY | |||||||||
CABLE PARTNERS, L.P., its sole member | ||||||||||
By: | /s/ Xxxxx X. X’Xxxxx | |||||||||
Name: Xxxxx X. X’Xxxxx | ||||||||||
Title: Executive Vice President — Investments |
COMCAST TRANSFERRED SUBSIDIARIES: | ||||||||||
TCP SECURITY COMPANY LLC | ||||||||||
By: | TEXAS AND KANSAS CITY CABLE | |||||||||
PARTNERS, L.P., its sole member | ||||||||||
By: | /s/ Xxxxx X. X’Xxxxx | |||||||||
Name: Xxxxx X. X’Xxxxx | ||||||||||
Title: Executive Vice President — Investments | ||||||||||
TCP-CHARTER CABLE ADVERTISING, LP | ||||||||||
By: | TWEAN-TCP HOLDINGS LLC, its general partner |
|||||||||
By: | TEXAS AND KANSAS CITY CABLE PARTNERS, L.P., its sole member | |||||||||
By: | /s/ Xxxxx X. X’Xxxxx | |||||||||
Name: Xxxxx X. X’Xxxxx | ||||||||||
Title: Executive Vice President — Investments | ||||||||||
TCP/CONROE-HUNTSVILLE CABLE ADVERTISING, LP | ||||||||||
By: | TWEAN-TCP HOLDINGS LLC, its general partner |
|||||||||
By: | TEXAS AND KANSAS CITY CABLE PARTNERS, L.P., its sole member | |||||||||
By: | /s/ Xxxxx X. X’Xxxxx | |||||||||
Name: Xxxxx X. X’Xxxxx | ||||||||||
Title: Executive Vice President — Investments |
TKCCP/CEBRIDGE TEXAS CABLE ADVERTISING, LP | ||||||||||
By: | TWEAN-TCP HOLDINGS LLC, its general partner |
|||||||||
By: | TEXAS AND KANSAS CITY CABLE | |||||||||
PARTNERS, L.P., its sole member | ||||||||||
By: | /s/ Xxxxx X. X’Xxxxx | |||||||||
Name: Xxxxx X. X’Xxxxx | ||||||||||
Title: Executive Vice President — Investments | ||||||||||
TWEAN-TCP HOLDINGS LLC | ||||||||||
By: | TEXAS AND KANSAS CITY CABLE | |||||||||
PARTNERS, L.P., its sole member | ||||||||||
By: | /s/ Xxxxx X. X’Xxxxx | |||||||||
Name: Xxxxx X. X’Xxxxx | ||||||||||
Title: Executive Vice President — Investments | ||||||||||
COMCAST DISTRIBUTION LLC: | ||||||||||
HOUSTON TKCCP HOLDINGS, LLC | ||||||||||
By: | TEXAS AND KANSAS CITY CABLE | |||||||||
PARTNERS, L.P., its sole member | ||||||||||
By: | /s/ Xxxxx X. X’Xxxxx | |||||||||
Name: Xxxxx X. X’Xxxxx | ||||||||||
Title: Executive Vice President — Investments |
Exhibit A
XXXX OF SALE AND ASSIGNMENT
AND ASSUMPTION AGREEMENT
XXXX OF SALE AND ASSIGNMENT AND ASSUMPTION AGREEMENT (“Xxxx of Sale”), dated January
1, 2007, by and between Texas and Kansas City Cable Partners, L.P., a Delaware limited partnership,
whose U.S. taxpayer identification number is 00-0000000 (“TKCCP”), and Time Warner
Entertainment–Advance/Xxxxxxxx Partnership, a New York general partnership, whose U.S. taxpayer
identification number is 00-0000000 (“TWI Assignee”). All capitalized terms not otherwise
defined herein shall have the meanings ascribed to them in the Distribution Agreement (as defined
below).
Recitals
Pursuant to that certain Limited Partnership Agreement of TKCCP, dated as of June 23,
1998, as amended by Amendment No. 1, dated as of December 11, 1998, Amendment No. 2, dated as of
May 16, 2000, Amendment No. 3, dated as of August 23, 2000, Amendment No. 4, dated as of May 1,
2004, and Amendment No. 5, dated as of February 28, 2005 (as amended, the “Partnership
Agreement”), by and among the Partners (as defined therein), the Partners intend to distribute
the assets of TKCCP and for TKCCP to be dissolved in accordance with the dissolution provisions of
the Delaware Revised Uniform Limited Partnership Act (Del. Code Xxx. Tit. 6 § 17-101 et.
seq.) and pursuant to the Dissolution Procedure set forth in Section 8.4 of the Partnership
Agreement.
Pursuant to Section 8.4(h)(ii) of the Partnership Agreement, the TWI Partners have elected to
have the Kansas & SW Asset Pool distributed to TWI Assignee, as a designee (as defined in Section
8.4(h)(v) of the Partnership Agreement) of the TWI Partners in complete redemption of the interest
of the TWI Partners in TKCCP, subject to the terms of the Partnership Agreement, the Dissolution
Agreement and this Xxxx of Sale.
Pursuant to Sections 2.1 and 2.2 of that certain Master Distribution, Dissolution and
Cooperation Agreement, dated as of January 1, 2007 (the “Distribution Agreement”), by and
among TKCCP, TWI Assignee, Comcast Assignee, each of the Partners, each of the TWI Transferred
Subsidiaries, each of the Comcast Transferred Subsidiaries and Comcast Distribution LLC, (a) TKCCP
has agreed to assign, transfer, convey and deliver to TWI Assignee, and TWI Assignee has agreed to
accept from TKCCP, all of TKCCP’s right, title and interest in and to the Transferred Assets (as
defined below) and (b) TWI Assignee has agreed to absolutely and irrevocably assume and agree to be
liable and responsible to pay when due, perform and discharge, all the Assumed Liabilities (as
defined below), in accordance with their respective terms. “Transferred Assets” means the
TWI Transferred Assets except to the extent such TWI Transferred Assets are Assets of a TWI
Transferred Subsidiary, in which case such TWI Transferred Subsidiary shall retain such TWI
Transferred Assets. “Assumed Liabilities” means the TWI Assumed
1
Liabilities except to the extent such TWI Assumed Liabilities are Liabilities of a TWI
Transferred Subsidiary, in which case such TWI Transferred Subsidiary shall retain such TWI Assumed
Liabilities.
Agreements
1. Transferred Assets. Effective as of the date hereof, for good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, TKCCP hereby, except as
provided in Section 0, assigns, transfers, conveys and delivers to TWI Assignee, and TWI Assignee
hereby accepts from TKCCP, all of TKCCP’s right, title and interest in and to the Transferred
Assets.
TO HAVE AND TO HOLD the right, title and interest of TKCCP in and to the Transferred Assets
unto TWI Assignee, its successors and assigns, to and for its or their use forever.
2. Assumed Liabilities. Effective as of the date hereof, TWI Assignee hereby
absolutely and irrevocably assumes and agrees, from and after the date hereof, to pay, discharge
and perform as and when due, the Assumed Liabilities.
3. TWI Assignee as Attorney-in-Fact. Except with respect to the Transferred Assets
specifically described in Section 5 below, TKCCP hereby constitutes and appoints TWI Assignee, its
successors and assigns, the true and lawful attorneys of TKCCP, with full power of substitution, in
the name and stead of TKCCP, but on behalf and for the benefit of TWI Assignee, its successors and
assigns, to demand and receive any and all of the Transferred Assets conveyed, assigned or
transferred to TWI Assignee hereunder, to give receipts and releases for and in respect of the
same, or any part thereof, and to do all acts and things in relation to such Transferred Assets
that TWI Assignee, its successors and assigns, shall deem desirable. Such power of attorney is
coupled with an interest and is irrevocable by TKCCP, by reason of TKCCP’s dissolution or for any
reason whatsoever.
4. TWI Assignee as Attorney-in-Fact for Accounts Receivable. Without limiting the
foregoing, TKCCP hereby constitutes and appoints TWI Assignee, its successors and assigns, the true
and lawful attorneys of TKCCP, with full power of substitution, in the name and stead of TKCCP, but
on behalf and for the benefit of TWI Assignee, its successors and assigns, to cash, deposit,
endorse or negotiate checks received on or after the consummation of the transactions contemplated
hereby made out to TKCCP in payment for cable television and related services provided by the TWI
Distributed Systems in respect of which an interest is transferred pursuant to this Xxxx of Sale.
Such power of attorney is coupled with an interest and is irrevocable by TKCCP, by reason of
TKCCP’s dissolution or for any reason whatsoever.
5. Delayed Assets.
a. Any Transferred Asset, the assignment, transfer, conveyance or delivery of which without
the consent, authorization, approval or waiver of a third party
2
would constitute a breach or other contravention of Law or such Transferred Asset or in any
way adversely affect the rights of TKCCP, the Partners or the TWI Assignee thereunder (a
“Delayed Asset”), shall not be assigned, transferred, conveyed or delivered until the
earlier of (i) such time as such consent, authorization, approval or waiver is obtained and (ii)
immediately prior to the dissolution of the Partnership on the Dissolution Date, at which time such
Delayed Asset shall be automatically assigned, transferred, conveyed or delivered without further
action on the part of TKCCP, the Partners or the TWI Assignee. Until the earlier of (i) such time
as such consent, authorization, approval or waiver is obtained and (ii) immediately prior to the
dissolution of the Partnership on the Dissolution Date, (A) TKCCP and the TWI Assignee shall use
all commercially reasonable efforts to obtain the relevant consent, authorization, approval or
waiver, (B) TKCCP shall endeavor to provide the TWI Assignee with the benefits under each Delayed
Asset as if such Delayed Asset had been assigned to the TWI Assignee, including preserving the
benefits of and enforcing for the benefit of the TWI Assignee, at the TWI Assignee’s expense, any
and all rights of TKCCP under such Delayed Asset, and (C) to the extent permissible with respect to
such Delayed Asset, the TWI Assignee shall (1) be responsible for the obligations of TKCCP with
respect to such Delayed Asset and (2) act as the agent of TKCCP in preserving the benefits of and
enforcing any and all rights of TKCCP in such Delayed Asset.
b. Any Delayed Asset shall be deemed a Transferred Asset for purposes of determining whether
any Liability is an Assumed Liability. Following the assignment, transfer, conveyance and delivery
of any Delayed Asset, the applicable Delayed Asset shall be treated for all purposes of this Xxxx
of Sale, the Partnership Agreement, the Distribution Agreement and the other Dissolution Documents
as a TWI Transferred Asset.
6. Further Assurances.
a. In addition to the actions specifically provided for elsewhere in this Xxxx of Sale, but
subject to the provisions hereof, each of the parties hereto shall use its commercially reasonable
efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things,
reasonably necessary, proper or advisable under applicable laws, regulations and agreements to
consummate and make effective the transactions contemplated by this Xxxx of Sale.
b. TKCCP shall do, execute, acknowledge and deliver or shall cause to be done, executed,
acknowledged and delivered such further acts, transfers, conveyances, assignments and assurances as
reasonably may be required to assure, convey, transfer, confirm, and vest to and in TWI Assignee
all of the Transferred Assets.
7. Relation to the Agreement; Conflict. This Xxxx of Sale is executed and delivered
pursuant to and to effect the transactions contemplated by the Distribution Agreement, subject to
the covenants, representations, warranties, and other provisions thereof. No provision set forth
in this Xxxx of Sale shall be deemed to enlarge, alter or amend the terms or provisions of the
Distribution Agreement. This Xxxx of Sale is not intended to (i) effect the transfer of any owned
real property or (ii) effect the transfer
3
of any Transferred Asset or the assumption of any Assumed Liability that is specifically
transferred or assumed pursuant to a separate instrument of transfer or assumption between the
parties hereto.
8. No Third-Party Beneficiaries. Nothing in this Xxxx of Sale, express or implied,
is intended or shall be construed to confer upon, or give to, any Person other than TWI Assignee or
TKCCP and, subject to Section 10.8 of the Distribution Agreement, their respective successors and
assigns (including, without limitation, any wholly-owned Subsidiary of TWI Assignee to which any
portion of the Transferred Assets are transferred after the effectiveness of this Xxxx of Sale) any
remedy or claim under or by reason of this Xxxx of Sale or any terms, covenants or conditions
hereof, and all of the terms, covenants, conditions, promises and agreements contained in this Xxxx
of Sale shall be for the benefit of only TWI Assignee or TKCCP and their respective successors and
assigns; provided, that TWI Assignee and TKCCP and their respective successors and assigns
shall have the right to specifically enforce the transactions contemplated by this Xxxx of Sale.
9. Counterparts. This Xxxx of Sale may be executed in any number of counterparts
(including by facsimile), each of which, when executed, shall be deemed to be an original and all
of which, when taken together, shall constitute one and the same instrument.
[Remainder of page intentionally left blank.]
4
TKCCP and TWI Assignee have executed this Xxxx of Sale as of the date set forth above.
TEXAS AND KANSAS CITY CABLE PARTNERS, L.P. |
||||
By: | ||||
Name: | ||||
Title: | ||||
STATE OF
|
) | |||||||
) | ss. | |||||||
COUNTY OF
|
) | |||||||
The
foregoing instrument was subscribed and sworn to before me this ___ day of
, ___ by
, as for Texas and Kansas City Cable
Partners, L.P. my hand and official seal.
My commission expires: .
Notary Public | ||||
Address |
TIME WARNER ENTERTAINMENT-ADVANCE/XXXXXXXX PARTNERSHIP |
||||||||
By: | TWE-A/N HOLDCO, L.P., its | |||||||
Managing Partner | ||||||||
By: | ||||||||
Name: | ||||||||
Title: |
STATE OF
|
) | |||||||
) | ss. | |||||||
COUNTY OF
|
) | |||||||
The
foregoing instrument was subscribed and sworn to before me this ___ day of
,
___ by , as for TWE-A/N Holdco, L.P., the
Managing Partner of Time Warner Entertainment-Advance/Xxxxxxxx Partnership.
Witness my hand and official seal.
My commission expires: .
Notary Public | ||||
Address |
Exhibit B
TWI Distributed Systems
TWI Distributed Systems
Systems and Franchises included in the Kansas City & Southwest Asset Pool
Division Name | System Name | LFA | State | |||
Kansas City
|
Kansas City | Avondale, City of | MO | |||
Kansas City
|
Kansas City | Belton, City of | MO | |||
Kansas City
|
Kansas City | Xxxxxx Springs, City of | KS | |||
Kansas City
|
Kansas City | Clay, County of (Unincorp.) | MO | |||
Kansas City
|
Kansas City | Claycomo, Village of | MO | |||
Kansas City
|
Kansas City | Desoto, City of | KS | |||
Kansas City
|
Kansas City | Edwardsville, City of | KS | |||
Kansas City
|
Kansas City | Fairway, City of | KS | |||
Kansas City
|
Kansas City | Ferrelview, City of | MO | |||
Kansas City
|
Kansas City | Ft. Leavenworth, Dept. of Army | KS | |||
Kansas City
|
Kansas City | Gardner, City of | KS | |||
Kansas City
|
Kansas City | Gladstone, City of | MO | |||
Kansas City
|
Kansas City | Glenaire, City of | MO | |||
Kansas City
|
Kansas City | Grandview, City of | MO | |||
Kansas City
|
Kansas City | Houston Lake, City of | MO | |||
Kansas City
|
Kansas City | Independence, City of | MO | |||
Kansas City
|
Kansas City | Xxxxxxx, County of | KS | |||
Kansas City
|
Kansas City | Kansas City, City of | KS | |||
Kansas City
|
Kansas City | Kansas City, City of | MO | |||
Kansas City
|
Kansas City | Kearney, City of | MO | |||
Kansas City
|
Kansas City | Lake Quivira, City of | KS | |||
Kansas City
|
Kansas City | Lake Waukomis, City of | MO | |||
Kansas City
|
Kansas City | Lansing, City of | KS | |||
Kansas City
|
Kansas City | Leavenworth, City of | KS | |||
Kansas City
|
Kansas City | Leavenworth, County of | KS | |||
Kansas City
|
Kansas City | Leawood, City of | KS | |||
Kansas City
|
Kansas City | Xxx’x Summit, City of | MO | |||
Kansas City
|
Kansas City | Lenexa, City of | KS | |||
Kansas City
|
Kansas City | Liberty, City of | MO | |||
Kansas City
|
Kansas City | Xxxx Xxxxx, City of | MO | |||
Kansas City
|
Kansas City | Lone Xxxx, City of | MO | |||
Kansas City
|
Kansas City | Merriam, City of | KS | |||
Kansas City
|
Kansas City | Mission Hills, City of | KS | |||
Kansas City
|
Kansas City | Mission Xxxxx, City of | KS | |||
Kansas City
|
Kansas City | Mission, City of | KS | |||
Kansas City
|
Kansas City | North Kansas City, City of | MO | |||
Kansas City
|
Kansas City | Northmoor, City of | MO | |||
Kansas City
|
Kansas City | Oaks, Village of | MO | |||
Kansas City
|
Kansas City | Oakview, Village of | MO | |||
Kansas City
|
Kansas City | Oakwood Park, Village of | MO | |||
Kansas City
|
Kansas City | Oakwood, Village of | MO | |||
Kansas City
|
Kansas City | Overland Park, City of | KS | |||
Kansas City
|
Kansas City | Parkville, City of | MO | |||
Kansas City
|
Kansas City | Platte City, City of | MO | |||
Kansas City
|
Kansas City | Platte Xxxxx, City of | MO |
Division Name | System Name | LFA | State | |||
Kansas City
|
Kansas City | Platte, County of (Unincorp.) | MO | |||
Kansas City
|
Kansas City | Pleasant Valley, City of | MO | |||
Kansas City
|
Kansas City | Prairie Village, City of | KS | |||
Kansas City
|
Kansas City | Xxxxxxxx-Xxxxxx AFB | MO | |||
Kansas City
|
Kansas City | Riverside, City of | MO | |||
Kansas City
|
Kansas City | Roeland Park, City of | KS | |||
Kansas City
|
Kansas City | Shawnee, City of | KS | |||
Kansas City
|
Kansas City | Smithville, City of | MO | |||
Kansas City
|
Kansas City | Xxxxx, City of | MO | |||
Kansas City
|
Kansas City | Weatherby Lake, City of | MO | |||
Kansas City
|
Kansas City | Weston, City of | MO | |||
Kansas City
|
Kansas City | Westwood Hills, City of | KS | |||
Kansas City
|
Kansas City | Westwood, City of | KS | |||
Southwest
|
Border Corridor | Asherton, City of | TX | |||
Southwest
|
Border Corridor | Atascosa, County of | TX | |||
Southwest
|
Border Corridor | Bruni (Unincorp.) | TX | |||
Southwest
|
Border Corridor | Carrizo Springs, City of | TX | |||
Southwest
|
Border Corridor | Charlotte, City of | TX | |||
Southwest
|
Border Corridor | Cotulla, City of | TX | |||
Xxxxxxxxx
|
Xxxxxx Xxxxxxxx | Xxxxxxx Xxxx, Xxxx of | TX | |||
Xxxxxxxxx
|
Xxxxxx Xxxxxxxx | Xxx Xxx, Xxxx of | TX | |||
Southwest
|
Border Corridor | Dilley, Town of | TX | |||
Southwest
|
Border Corridor | Dimmitt, County of | TX | |||
Southwest
|
Border Corridor | Dimmitt, County of | TX | |||
Southwest
|
Border Corridor | Eagle Pass, City of | TX | |||
Southwest
|
Border Corridor | Encinal, City of | TX | |||
Southwest
|
Border Corridor | Frio, County of | TX | |||
Southwest
|
Border Corridor | Hebbronville (Unincorp.) | TX | |||
Southwest
|
Border Corridor | Jourdanton, City of | TX | |||
Southwest
|
Border Corridor | Knippa (Unincorp.) | TX | |||
Southwest
|
Border Corridor | La Salle, County of | TX | |||
Southwest
|
Border Corridor | Xxxxxxxx AFB | TX | |||
Southwest
|
Border Corridor | Maverick, County of | TX | |||
Southwest
|
Border Corridor | Xxxxxxx (Unincorp.) | TX | |||
Southwest
|
Border Corridor | Oilton (Unincorp.) | TX | |||
Southwest
|
Border Corridor | Pearsall, City of | TX | |||
Southwest
|
Border Corridor | Poteet, City of | TX | |||
Southwest
|
Border Corridor | Quemado (Unincorp.) | TX | |||
Southwest
|
Border Corridor | San Xxxxxxx, County of | TX | |||
Southwest
|
Border Corridor | San Ygnacio (Unincorp.) | TX | |||
Southwest
|
Border Corridor | Uvalde, City of | TX | |||
Southwest
|
Border Corridor | Uvalde, County of | TX | |||
Southwest
|
Border Corridor | Val Verde, County of | TX | |||
Southwest
|
Border Corridor | Zapata, Couty of | TX | |||
Southwest
|
Border Corridor | Xxxxxx, County of | TX | |||
Southwest
|
Corpus Christi | Agua Dulce, City of | TX | |||
Southwest
|
Corpus Christi | Alice, City of | TX |
Division Name | System Name | LFA | State | |||
Southwest
|
Corpus Christi | Banquette (Unincorp.) | TX | |||
Southwest
|
Corpus Christi | Beeville, City of | TX | |||
Southwest
|
Corpus Xxxxxxx | Xxxxxxxxx, City of | TX | |||
Southwest
|
Corpus Xxxxxxx | Xxxxxx, City of | TX | |||
Southwest
|
Corpus Xxxxxxx | Xxxxxx, County of | TX | |||
Southwest
|
Corpus Xxxxxxx | Xxxxxx Christi Naval Air Station | TX | |||
Southwest
|
Corpus Xxxxxxx | Xxxxxx Xxxxxxx, City of | TX | |||
Southwest
|
Corpus Xxxxxxx | Xxxxxxxx, City of | TX | |||
Southwest
|
Corpus Xxxxxxx | Xxxxx, County of | TX | |||
Southwest
|
Corpus Christi | Falfurrias, City of | TX | |||
Southwest
|
Corpus Xxxxxxx | Xxxxx, City of | TX | |||
Xxxxxxxxx
|
Xxxxxx Xxxxxxx | Xxxxxx Xxxx, Xxxx of | TX | |||
Southwest
|
Corpus Christi | Xxx Xxxxx, County of | TX | |||
Xxxxxxxxx
|
Xxxxxx Xxxxxxx | Xxxx Xxxx, Xxxx of | TX | |||
Southwest
|
Corpus Christi | Lakeside, Town of | TX | |||
Southwest
|
Corpus Xxxxxxx | Xxxxxx, City of | TX | |||
Southwest
|
Corpus Xxxxxxx | Xxxx, City of | TX | |||
Xxxxxxxxx
|
Xxxxxx Xxxxxxx | Xxxxxx Xxxxx, Xxxx of | TX | |||
Southwest
|
Corpus Christi | Port X’Xxxxxx (Unincorp.) | TX | |||
Southwest
|
Corpus Xxxxxxx | Xxxxxxx, City of | TX | |||
Southwest
|
Corpus Xxxxxxx | Xxxxxxx, Town of | TX | |||
Southwest
|
Corpus Christi | Robstown, City of | TX | |||
Southwest
|
Corpus Christi | San Diego, City of | TX | |||
Southwest
|
Corpus Christi | Seadrift, City of | TX | |||
Southwest
|
Corpus Christi | The Lakes (Unincorp.) | TX | |||
Southwest
|
Corpus Xxxxxxx | Xxxx, County of | TX | |||
Southwest
|
Corpus Christi | Woodsboro, Town of | TX | |||
Southwest
|
El Paso | Anthony, Town of | TX | |||
Southwest
|
El Paso | Canutillo (Unincorp.) | TX | |||
Southwest
|
El Paso | Clint, Town of | TX | |||
Southwest
|
El Paso | Xxxx Xxx, County of | NM | |||
Southwest
|
El Paso | El Paso, City of | TX | |||
Xxxxxxxxx
|
Xx Xxxx | Xx Xxxx, Xxxxxx of | TX | |||
Southwest
|
El Paso | Fabens (Unincorp.) | TX | |||
Southwest
|
El Paso | Fort Bliss | TX | |||
Southwest
|
El Paso | Horizon City, Town of | TX | |||
Southwest
|
El Paso | Moon City (Unincorp.) | TX | |||
Southwest
|
El Paso | Socorro, City of | TX | |||
Xxxxxxxxx
|
Xx Xxxx | Xxxxxxx Xxxx, Xxxx of | NM | |||
Southwest
|
El Paso | Tennis West (Unincorp.) | TX | |||
Southwest
|
El Paso | Vinton, Village of | TX | |||
Southwest
|
Golden Triangle | Beaumont, City of | TX | |||
Southwest
|
Golden Triangle | Groves, City of | TX | |||
Southwest
|
Golden Triangle | Jefferson County | TX | |||
Southwest
|
Golden Triangle | Nederland, City of | TX | |||
Southwest
|
Golden Triangle | Orange, City of | TX | |||
Southwest
|
Golden Triangle | Orange, County of | TX |
Division Name | System Name | LFA | State | |||
Southwest
|
Golden Triangle | Pinehurst, City of | TX | |||
Xxxxxxxxx
|
Xxxxxx Xxxxxxxx | Xxxx Xxxxxx, Xxxx of | TX | |||
Xxxxxxxxx
|
Xxxxxx Xxxxxxxx | Xxxx Xxxxxx, Xxxx of | TX | |||
Southwest
|
Golden Triangle | West Orange, City of | TX | |||
Southwest
|
Kerrville | Xxxx, County of | TX | |||
Southwest
|
Kerrville | Kerrville, City of | TX | |||
Southwest
|
Laredo | El Cenizo, City of | TX | |||
Southwest
|
Laredo | Laredo, City of | TX | |||
Southwest
|
Laredo | Rio Bravo, City of | TX | |||
Southwest
|
Laredo | Xxxx, County of | TX | |||
Southwest
|
Rio Grande Valley | Alamo, City of | TX | |||
Xxxxxxxxx
|
Xxx Xxxxxx Xxxxxx | Xxxxx, Xxxx of | TX | |||
Southwest
|
Rio Grande Valley | Brownsville, City of | TX | |||
Southwest
|
Rio Grande Valley | Cameron (Unincorp.) | TX | |||
Xxxxxxxxx
|
Xxx Xxxxxx Xxxxxx | Xxxxxx, Xxxx of | TX | |||
Southwest
|
Rio Grande Valley | Donna, City of | TX | |||
Southwest
|
Rio Grande Valley | Edcouch, Town of | TX | |||
Southwest
|
Rio Grande Valley | Edinburg, City of | TX | |||
Southwest
|
Rio Grande Valley | Elsa, City of | TX | |||
Southwest
|
Rio Grande Valley | Garciasville (Unincorp.) | TX | |||
Southwest
|
Rio Grande Valley | Harlingen, City of | TX | |||
Southwest
|
Rio Grande Valley | Hidalgo, City of | TX | |||
Southwest
|
Rio Grande Valley | Xxxxxxx, County | TX | |||
Southwest
|
Rio Grande Valley | Indian Lake, Town of | TX | |||
Southwest
|
Rio Grande Valley | La Feria, City of | TX | |||
Southwest
|
Rio Grande Valley | La Grulla, City of | TX | |||
Southwest
|
Rio Grande Valley | La Joya, City of | TX | |||
Southwest
|
Rio Grande Valley | La Villa, City of | TX | |||
Southwest
|
Rio Grande Valley | Laguna Heights (Unincorp.) | TX | |||
Xxxxxxxxx
|
Xxx Xxxxxx Xxxxxx | Xxxxxx Xxxxx, Xxxx of | TX | |||
Southwest
|
Rio Grande Valley | Las Milpas (Unincorp.) | TX | |||
Southwest
|
Rio Grande Valley | Lopezville (Unincorp.) | TX | |||
Southwest
|
Rio Grande Valley | Los Fresnos, City of | TX | |||
Southwest
|
Rio Grande Valley | Lyford, Township of | TX | |||
Southwest
|
Rio Grande Valley | McAllen, City of | TX | |||
Southwest
|
Rio Grande Valley | Mercedes, City of | TX | |||
Southwest
|
Rio Grande Valley | Mission, City of | TX | |||
Southwest
|
Rio Grande Valley | Olmito (Unincorp.) | TX | |||
Xxxxxxxxx
|
Xxx Xxxxxx Xxxxxx | Xxxx Xxxxxx, Xxxx of | TX | |||
Southwest
|
Rio Grande Valley | Palmhurst, City of | TX | |||
Southwest
|
Rio Grande Valley | Palmview, City of | TX | |||
Xxxxxxxxx
|
Xxx Xxxxxx Xxxxxx | Xxxxxxx, Xxxx of | TX | |||
Southwest
|
Rio Grande Valley | Xxxxx, City of | TX | |||
Xxxxxxxxx
|
Xxx Xxxxxx Xxxxxx | Xxxx Xxxxxx, Xxxx of | TX | |||
Southwest
|
Rio Grande Valley | Primera, Town of | TX | |||
Southwest
|
Rio Grande Valley | Rancho Viejo, City of | TX |
Division Name | System Name | LFA | State | |||
Southwest
|
Rio Grande Valley | Raymondville, City of | TX | |||
Southwest
|
Rio Grande Valley | Rio Del Sol (Unincorp.) | TX | |||
Xxxxxxxxx
|
Xxx Xxxxxx Xxxxxx | Xxx Xxxxxx Xxxx, Xxxx of | TX | |||
Southwest
|
Rio Grande Valley | Rio Hondo, Town of | TX | |||
Southwest
|
Rio Grande Valley | Roma, City of | TX | |||
Xxxxxxxxx
|
Xxx Xxxxxx Xxxxxx | Xxx Xxxxxx, Xxxx of | TX | |||
Southwest
|
Rio Grande Valley | San Xxxx, City of | TX | |||
Xxxxxxxxx
|
Xxx Xxxxxx Xxxxxx | Xxxxx Xxxx, Xxxx of | TX | |||
Xxxxxxxxx
|
Xxx Xxxxxx Xxxxxx | Xxxxx Xxxxx Xxxxxx, Xxxx of | TX | |||
Southwest
|
Rio Grande Valley | Starr, County of | TX | |||
Xxxxxxxxx
|
Xxx Xxxxxx Xxxxxx | Xxxxxxxx Xxxx, Xxxx of | TX | |||
Southwest
|
Rio Grande Valley | Weslaco, City of | TX | |||
Southwest
|
Rio Grande Valley | Willacy, County of | TX | |||
Southwest
|
South Central | Colorado, County | TX | |||
Xxxxxxxxx
|
Xxxxx Xxxxxxx | Xxxxxxxx, Xxxx of | TX | |||
Southwest
|
South Central | Cuero, City of | TX | |||
Southwest
|
South Central | De Xxxx, County of | TX | |||
Xxxxxxxxx
|
Xxxxx Xxxxxxx | Xxxxx Xxxx, Xxxx of | TX | |||
Southwest
|
South Central | Xxxxxxxx, City of | TX | |||
Southwest
|
South Central | Xxxxxxxx, County | TX | |||
Xxxxxxxxx
|
Xxxxx Xxxxxxx | Xx Xxxx, Xxxxxx of | TX | |||
Xxxxxxxxx
|
Xxxxx Xxxxxxx | Xxxxxx, Xxxx of | TX |
Exhibit C
XXXX OF SALE AND ASSIGNMENT
AND ASSUMPTION AGREEMENT
XXXX OF SALE AND ASSIGNMENT AND ASSUMPTION AGREEMENT (“Xxxx of Sale”), dated January
1, 2007, by and between Texas and Kansas City Cable Partners, L.P., a Delaware limited partnership,
whose U.S. taxpayer identification number is 00-0000000 (“TKCCP”), and Houston TKCCP
Holdings, LLC, a Delaware limited liability company, whose U.S. taxpayer identification number is
00-0000000 (“Comcast Distribution LLC”). All capitalized terms not otherwise defined
herein shall have the meanings ascribed to them in the Distribution Agreement (as defined below).
Recitals
Pursuant to that certain Limited Partnership Agreement of TKCCP, dated as of June 23,
1998, as amended by Amendment No. 1, dated as of December 11, 1998, Amendment No. 2, dated as of
May 16, 2000, Amendment No. 3, dated as of August 23, 2000, Amendment No. 4, dated as of May 1,
2004, and Amendment No. 5, dated as of February 28, 2005 (as amended, the “Partnership
Agreement”), by and among the Partners (as defined therein), the Partners intend to distribute
the assets of TKCCP and for TKCCP to be dissolved in accordance with the dissolution provisions of
the Delaware Revised Uniform Limited Partnership Act (Del. Code Xxx. Tit. 6 § 17-101 et.
seq.) and pursuant to the Dissolution Procedure set forth in Section 8.4 of the Partnership
Agreement.
Pursuant to Section 8.4(h)(ii) of the Partnership Agreement, the Comcast Partners have elected
to have the Houston Asset Pool distributed to Comcast Assignee, as a designee (as defined in
Section 8.4(h)(v) of the Partnership Agreement) of the Comcast Partners in complete redemption of
the interest of the Comcast Partners in TKCCP, subject to the terms of the Partnership Agreement,
the Dissolution Agreement and this Xxxx of Sale.
Pursuant to Sections 3.1, 3.3 and 3.6 of that certain Master Distribution, Dissolution and
Cooperation Agreement, dated as of January 1, 2007 (the “Distribution Agreement”), by and
among TKCCP, TWI Assignee, Comcast Assignee, each of the Partners, each of the TWI Transferred
Subsidiaries, each of the Comcast Transferred Subsidiaries and Comcast Distribution LLC, (a) TKCCP
has agreed to assign, transfer, convey and deliver to Comcast Distribution LLC, and Comcast
Distribution LLC has agreed to accept from TKCCP, all of TKCCP’s right, title and interest in and
to the Transferred Assets (as defined below) and (b) Comcast Distribution LLC has agreed to
absolutely and irrevocably assume and agree to be liable and responsible to pay when due, perform
and discharge, all the Assumed Liabilities (as defined below), in accordance with their respective
terms. “Transferred Assets” means the Comcast Transferred Assets except to the extent such
Comcast Transferred Assets are Assets of a Comcast Transferred Subsidiary, in which case such
Comcast Transferred Subsidiary shall retain
1
such Comcast Transferred Assets. “Assumed Liabilities” means the Comcast Assumed
Liabilities except to the extent such Comcast Assumed Liabilities are Liabilities of a Comcast
Transferred Subsidiary, in which case such Comcast Transferred Subsidiary shall retain such Comcast
Assumed Liabilities.
Agreements
1. Transferred Assets. Effective as of the date hereof, for good and
valuable consideration, the receipt and adequacy of which are hereby acknowledged, TKCCP hereby,
except as provided in Section 5, assigns, transfers, conveys and delivers to Comcast Distribution
LLC and Comcast Distribution LLC hereby accepts from TKCCP, all of TKCCP’s right, title and
interest in and to the Transferred Assets.
TO HAVE AND TO HOLD the right, title and interest of TKCCP in and to the Transferred Assets
unto Comcast Distribution LLC, its successors and assigns, to and for its or their use forever.
2. Assumed Liabilities. Effective as of the date hereof, Comcast Distribution LLC
hereby absolutely and irrevocably assumes and agrees, from and after the date hereof, to pay,
discharge and perform as and when due, the Assumed Liabilities.
3. Comcast Distribution LLC as Attorney-in-Fact. Except with respect to the
Transferred Assets specifically described in Section 5 below, TKCCP hereby constitutes and appoints
Comcast Distribution LLC, its successors and assigns, the true and lawful attorneys of TKCCP, with
full power of substitution, in the name and stead of TKCCP, but on behalf and for the benefit of
Comcast Distribution LLC, its successors and assigns, to demand and receive any and all of the
Transferred Assets conveyed, assigned or transferred to Comcast Distribution LLC hereunder, to give
receipts and releases for and in respect of the same, or any part thereof, and to do all acts and
things in relation to such Transferred Assets that Comcast Distribution LLC, its successors and
assigns, shall deem desirable. Such power of attorney is coupled with an interest and is
irrevocable by TKCCP, by reason of TKCCP’s dissolution or for any reason whatsoever.
4. Comcast Distribution LLC as Attorney-in-Fact for Accounts Receivable. Without
limiting the foregoing, TKCCP hereby constitutes and appoints Comcast Distribution LLC, its
successors and assigns, the true and lawful attorneys of TKCCP, with full power of substitution, in
the name and stead of TKCCP, but on behalf and for the benefit of Comcast Distribution LLC, its
successors and assigns, to cash, deposit, endorse or negotiate checks received on or after the
consummation of the transactions contemplated hereby made out to TKCCP in payment for cable
television and related services provided by the Comcast Distributed Systems in respect of which an
interest is transferred pursuant to this Xxxx of Sale. Such power of attorney is coupled with an
interest and is irrevocable by TKCCP, by reason of TKCCP’s dissolution or for any reason
whatsoever.
2
5. Delayed Assets.
a. Any Transferred Asset, the assignment, transfer, conveyance or delivery of which (or,
following such assignment, transfer, conveyance or delivery, the transfer of the Equity Securities
of Comcast Distribution LLC to Comcast Assignee) without the consent, authorization, approval or
waiver of a third party would constitute a breach or other contravention of Law or such Transferred
Asset or in any way adversely affect the rights of TKCCP, Comcast Distribution LLC, the Partners or
the Comcast Assignee thereunder (a “Delayed Asset”), shall not be assigned, transferred,
conveyed or delivered until the earlier of (i) such time as such consent, authorization, approval
or waiver is obtained and (ii) immediately prior to the dissolution of the Partnership on the
Dissolution Date, at which time such Delayed Asset shall be automatically assigned, transferred,
conveyed or delivered without further action on the part of TKCCP, Comcast Distribution LLC, the
Partners or the Comcast Assignee. Until the earlier of (i) such time as such consent,
authorization, approval or waiver is obtained and (ii) immediately prior to the dissolution of the
Partnership on the Dissolution Date, (A) TKCCP and Comcast Distribution LLC shall use all
commercially reasonable efforts to obtain the relevant consent, authorization, approval or waiver,
(B) TKCCP shall endeavor to provide Comcast Distribution LLC with the benefits under each Delayed
Asset as if such Delayed Asset had been assigned to Comcast Distribution LLC, including preserving
the benefits of and enforcing for the benefit of Comcast Distribution LLC, at Comcast Distribution
LLC’s expense, any and all rights of TKCCP under such Delayed Asset, and (C) to the extent
permissible with respect to such Delayed Asset, Comcast Distribution LLC shall (1) be responsible
for the obligations of TKCCP with respect to such Delayed Asset and (2) act as the agent of TKCCP
in preserving the benefits of and enforcing any and all rights of TKCCP in such Delayed Asset.
b. Any Delayed Asset shall be deemed a Transferred Asset for purposes of determining whether
any Liability is an Assumed Liability. Following the assignment, transfer, conveyance and delivery
of any Delayed Asset, the applicable Delayed Asset shall be treated for all purposes of this Xxxx
of Sale, the Partnership Agreement, the Distribution Agreement and the other Dissolution Documents
as a Comcast Transferred Asset.
6. Comcast Selected Employees. Each Comcast Selected Employee (as defined in the
Employee Matters Agreement) who, as of immediately prior to the Distribution Date, was a current
employee (including any employee on a leave of absence (including, without limitation, paid or
unpaid leave, short-term disability, medical, personal, or any other form of authorized leave but
excluding any employee who is on long-term disability)) of TWE, TWE-A/N or any of their respective
Affiliates is hereby deemed an employee of Comcast Distribution LLC.
7. Further Assurances.
a. In addition to the actions specifically provided for elsewhere in this Xxxx of Sale, but
subject to the provisions hereof, each of the parties hereto shall use its commercially reasonable
efforts to take, or cause to be taken, all actions, and to do, or
3
cause to be done, all things, reasonably necessary, proper or advisable under applicable laws,
regulations and agreements to consummate and make effective the transactions contemplated by this
Xxxx of Sale.
b. TKCCP shall do, execute, acknowledge and deliver or shall cause to be done, executed,
acknowledged and delivered such further acts, transfers, conveyances, assignments and assurances as
reasonably may be required to assure, convey, transfer, confirm, and vest to and in Comcast
Distribution LLC all of the Transferred Assets.
8. Relation to the Agreement; Conflict. This Xxxx of Sale is executed and delivered
pursuant to and to effect the transactions contemplated by the Distribution Agreement, subject to
the covenants, representations, warranties, and other provisions thereof. No provision set forth
in this Xxxx of Sale shall be deemed to enlarge, alter or amend the terms or provisions of the
Distribution Agreement. This Xxxx of Sale is not intended to (i) effect the transfer of any owned
real property or (ii) effect the transfer of any Transferred Asset or the assumption of any Assumed
Liability that is specifically transferred or assumed pursuant to a separate instrument of transfer
or assumption between the parties hereto.
9. No Third-Party Beneficiaries. Nothing in this Xxxx of Sale, express or
implied, is intended or shall be construed to confer upon, or give to, any Person other than
Comcast Distribution LLC or TKCCP and, subject to Section 10.8 of the Distribution Agreement, their
respective successors and assigns (including, without limitation, any wholly-owned Subsidiary of
Comcast Distribution LLC to which any portion of the Transferred Assets are transferred after the
effectiveness of this Xxxx of Sale) any remedy or claim under or by reason of this Xxxx of Sale or
any terms, covenants or conditions hereof, and all of the terms, covenants, conditions, promises
and agreements contained in this Xxxx of Sale shall be for the benefit of only Comcast Distribution
LLC or TKCCP and their respective successors and assigns; provided, that Comcast
Distribution LLC and TKCCP and their respective successors and assigns shall have the right to
specifically enforce the transactions contemplated by this Xxxx of Sale.
10. Counterparts. This Xxxx of Sale may be executed in any number of counterparts
(including by facsimile), each of which, when executed, shall be deemed to be an original and all
of which, when taken together, shall constitute one and the same instrument.
[Remainder of page intentionally left blank.]
4
TKCCP and Comcast Distribution LLC have executed this Xxxx of Sale as of the date set forth
above.
TEXAS AND KANSAS CITY CABLE PARTNERS, L.P. |
||||
By: | ||||
Name: | ||||
Title: | ||||
STATE OF
|
) | |||||||
) | ss. | |||||||
COUNTY OF
|
) | |||||||
The
foregoing instrument was subscribed and sworn to before me this ___ day of
,
___by , as for Texas and Kansas City Cable
Partners, L.P. my hand and official seal.
My commission expires: .
Notary Public | ||||
Address |
HOUSTON TKCCP HOLDINGS, LLC | ||||||||
By: | TEXAS AND KANSAS CITY CABLE PARTNERS, L.P., its sole member | |||||||
By: | ||||||||
Name: | ||||||||
Title: |
STATE OF
|
) | |||||||
) | ss. | |||||||
COUNTY OF
|
) | |||||||
The
foregoing instrument was subscribed and sworn to before me this ___ day of
,
___by , as for Texas And Kansas City Cable
Partners, L.P., the sole member of Houston TKCCP Holdings, LLC.
Witness my hand and official seal.
My commission expires: .
Notary Public | ||||
Address |
Exhibit D
Comcast Distributed Systems
Comcast Distributed Systems
Systems and Franchises included in the Houston Asset Pool
Division Name | System Name | LFA | State | |||
Houston
|
Clute | Clute, City of | TX | |||
Houston
|
Clute | Freeport, City of | TX | |||
Houston
|
Clute | Lake Xxxxxxx, City of | TX | |||
Houston
|
Clute | Richwood, City of | TX | |||
Houston
|
Xxxxxxx | Xxxxx, City of | TX | |||
Houston
|
Houston | Bayou Vista, Village of | TX | |||
Houston
|
Houston | Baytown, City of | TX | |||
Houston
|
Houston | Bellaire, City of | TX | |||
Houston
|
Houston | Brazoria, County of (Unincorp.) | TX | |||
Houston
|
Houston | Brookside Village, City of | TX | |||
Houston
|
Houston | Bunker Hill Village, City of | TX | |||
Houston
|
Houston | Xxxxxxxx, County of (Unincorp.) | TX | |||
Houston
|
Houston | Clear Lake Shores, City of | TX | |||
Houston
|
Houston | Conroe, City of | TX | |||
Houston
|
Houston | Dayton, City of | TX | |||
Houston
|
Houston | Deer Park, City of | TX | |||
Houston
|
Houston | Dickinson, City of | TX | |||
Houston
|
Houston | El Lago, City of | TX | |||
Houston
|
Houston | Friendswood, City of | TX | |||
Houston
|
Houston | Ft. Bend, County of (Unincorp.) | TX | |||
Houston
|
Houston | Fulshear, City of | TX | |||
Houston
|
Houston | Galena Park, City of | TX | |||
Houston
|
Houston | Galveston, City of | TX | |||
Houston
|
Houston | Galveston, County of (Unincorp.) | TX | |||
Houston
|
Houston | Xxxxxx, County of (Unincorp.) | TX | |||
Houston
|
Xxxxxxx | Xxxxxx Village, City of | TX | |||
Houston
|
Houston | Hillcrest Village, City of | TX | |||
Houston
|
Houston | Hilshire Village, City of | TX | |||
Houston
|
Houston | Xxxxxxxxx, City of | TX | |||
Houston
|
Houston | Houston, City of | TX | |||
Houston
|
Houston | Humble, City of | TX | |||
Houston
|
Houston | Hunters Creek Village, City of | TX | |||
Houston
|
Xxxxxxx | Xxxxxxx City, City of | TX | |||
Houston
|
Houston | Jamaica Beach, Village of | TX | |||
Houston
|
Houston | Jersey Village, City of | TX | |||
Houston
|
Houston | Katy, City of | TX | |||
Houston
|
Houston | Kemah, City of | TX | |||
Houston
|
Houston | La Marque, City of | TX | |||
Houston
|
Houston | La Porte, City of | TX | |||
Houston
|
Houston | League City, City of | TX |
Division Name | System Name | LFA | State | |||
Houston
|
Houston | Liberty, City of | TX | |||
Houston
|
Houston | Liberty, County of (Unincorp.) | TX | |||
Houston
|
Houston | Magnolia, City of | TX | |||
Houston
|
Houston | Xxxxxxx Place, City of | TX | |||
Houston
|
Houston | Missouri City, City of | TX | |||
Houston
|
Houston | Xxxxxxxxxx, County of (Unincorp.) | TX | |||
Houston
|
Houston | Xxxxxx’x Point, City of | TX | |||
Houston
|
Houston | Nassau Bay, City of | TX | |||
Houston
|
Houston | Needville, City of | TX | |||
Houston
|
Houston | Pasadena, City of | TX | |||
Houston
|
Houston | Pearland, City of | TX | |||
Houston
|
Houston | Piney Point Village, City of | TX | |||
Houston
|
Houston | Richmond, City of | TX | |||
Houston
|
Houston | Rosenberg, City of | TX | |||
Houston
|
Houston | Santa Fe, City of | TX | |||
Houston
|
Houston | Seabrook, City of | TX | |||
Houston
|
Houston | Shenandoah, City of | TX | |||
Houston
|
Houston | Shoreacres, City of | TX | |||
Houston
|
Houston | South Houston, City of | TX | |||
Houston
|
Houston | Southside Place, City of | TX | |||
Houston
|
Houston | Spring Valley, City of | TX | |||
Houston
|
Houston | Stafford, City of | TX | |||
Houston
|
Houston | Sugar Land, City of | TX | |||
Houston
|
Houston | Xxxxxx Lake Village, City of | TX | |||
Houston
|
Houston | Texas City, City of | TX | |||
Houston
|
Houston | Tiki Island, Village of | TX | |||
Houston
|
Houston | Tomball, City of | TX | |||
Houston
|
Houston | Webster, City of | TX | |||
Houston
|
Houston | West University Place, City of | TX | |||
Houston
|
Houston | Woodlands, The | TX |