44-01 Resolution
RECORD OF RESOLUTIONS
Dayton legal Blank Ca., Farm No. 30045
"
~ I 44-01
Ii Resolution No. . Passed u u
\1 u, YE.-\R
I: A RESOLUTION TO APPROVE THE TRANSFER
:
1i OF THE AMERlTECH NEW MEDIA, INC.
!I CABLE TELEVISION FRANCHISE TO
WIDE OPEN WEST, LLC
i:
i: WHEREAS, the City of Dublin, Ohio (the "City") has granted a cable television franchise pursuant to a Cable
II
il Television Franchise Agreement effective as of December 1, 1997 (the "Franchise") to Ameritech New Media,
I Inc. (the "Franchisee"); and
II
I:
'I WHEREAS, Wide Open West Holdings, LLC ("WOW Holdings"), and Franchisee entered into an Asset
!I
I Purchase Agreement, dated as of May 23, 2001 (the "Asset Purchase Agreement"), pursuant to which the
Franchise will be assigned to WideOpen West Ohio, LLC ("WOW"), an entity controlled by WOW Holdings;
and
WHEREAS, the Franchisee, as Transferor/Assignor, and WOW, as Transferee/Assignee, submitted an
application on FCC Form 394 on June 6, 2001, to the City requesting consent to the assignment of the
Franchise as a result of the Asset Purchase Agreement; and
WHEREAS, the City intends to consent to the assignment, subject to acceptance of the terms and conditions
set forth herein, having determined that such consent is consistent with the terms of the Franchise and in the
best interest of the City.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Dublin, State of Ohio, & of
the elected members concurring that:
Section 1. The City does hereby consent to the assignment of the Franchise to WOW effective as of the
Closing Date pursuant to the Asset Purchase Agreement. WOW shall be responsible for any obligations and
liabilities under the Franchise after such Closing Date.
Section 2. The City hereby confirms that:
A. The Franchise is valid and outstanding and in full force and effect;
B. There have been no amendments or modifications to the Franchise, except as set forth herein;
C. To the best of the City's knowledge, the Franchisee is materially in compliance with the provisions
of the Franchise; and
D. To the best of the City's knowledge, there are no defaults under the Franchise, or events which, with
the giving of notice or passage of time or both, could constitute events of default thereunder.
Section 3. WOW or WOW Holdings may, without obtaining prior consent of the City:
A. Assign or transfer its assets, including the Franchise, to any entity that is controlled by WOW
Holdings;
B. Restructure or change the ownership interests in WOW or WOW Holdings, whether through private
placements, an initial or secondary public offering or otherwise, so long as one or more of the existing
equity owners of WOW and WOW Holdings retains control through not less than 51 % of the voting
equity interests in WOW or WOW Holdings;
C. Pledge or grant a security interest to any lender or creditor of WOW or WOW Holdings for the
purpose of securing an indebtedness, provided that nothing in this clause (C) shall be interpreted to
permit such lender or creditor to transfer or assign, or to transfer control of, the Franchise or all or any
part of the underlying system, or any right or interest therein to any person without the consent of the
City. WOW shall provide the City with 30-days' advance notice of any of the transaction subject to
this Section 3.
Section 4. This Resolution shall take effect immediately.
Section 5. That the City Manager is hereby authorized to enter into, execute and deliver in the name
and on behalf of the City a certificate, along with such other documents as may be necessary evidencing this
Resolution without further act or resolution of Council.
[)e..-fD ~~2001
~~Q~
Clerk of Council I hereby cortify thut cG~ies of this Ordirum.ce/Resolution were poste in tilt
City of Dublin in accord'ance wit~ Section 731.25 of the Ohio Revised Code.
C~. (ler
Page 1 of8
ASSIGNMENT AGREEMENT
This agreement regarding the assignment of the cable television franchise
("Assignment Agreement") in Dublin, Ohio is effective as of , 2001,
and is made and entered into by and among WideOpen West Ohio, LLC. ("WOW"), and
the City of Dublin, Ohio ("City" or "Franchise Authority").
WITNESSETH
WHEREAS, pursuant to Ordinance No. 41-96 on December 1, 1997, the City
granted a non-exclusive franchise ("Franchise") for the construction, operation, and
maintenance of a cable television system ("System") in the City, to Ameritech New
Media, Inc. ("Americast") which was consistent with the City's Code of General
Ordinances ("Code"); and
WHEREAS, Americast and WOW submitted to the City a Federal
Communications Commission ("FCC") Form 394, entitled Application for Franchise
Authority Consent to the Assignment of a Cable Television Franchise ("Application"),
dated June 6, 2001, requesting that the City acknowledge receipt of, and approve, the
Application; and
WHEREAS, Americast and Wide Open West Holdings LLC. ("WOH") have
entered into an asset purchase agreement selling the Americast cable system to WOH (the
"Asset Purchase Agreement") dated as of May 23,2001; and
WHEREAS, WOW is an entity that is wholly owned and controlled by WOH; and
WHEREAS, the Asset Purchase Agreement will result in WOW, through WHO,
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assuming all the rights and obligations of Americast pertaining to Americast's cable
system; and
WHEREAS, subsequent to approval of the Application, execution of this
Assignment Agreement and consummation of the closing of the sale transaction between
Americast and WOH, WOW will hold the Franchise and operate the System; and
WHEREAS, the Application provides for, among other things, representations
from WOW regarding its legal, technical and financial qualifications to operate the
System; and
WHEREAS, the Franchise, at Section 3.9, requires the City's prior consent to an
assignment or transfer of control of the Franchise; and
WHEREAS, the City has reviewed the Application and examined the character,
financial, technical and legal qualifications of WOW and in accordance with applicable
federal laws and the Franchise; and
WHEREAS, based on such review and examination, the City is willing to grant its
consent to the proposed Assignment of the Franchise, subject to the willingness of WOW
agree to terms and conditions necessary to protect the public interest; and
WHEREAS, by approval of this Assignment of the Franchise, the City shall not
be deemed to have waived any of its rights under the Franchise or applicable law; and
WHEREAS, WOW is willing to agree to such terms and conditions; and
WHEREAS, the City has enacted Resolution on , which is
hereby incorporated by reference, granting its approval of the Application on the
condition that the parties enter into this Assignment Agreement;
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NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
set forth herein, the parties hereby agree:
AGREEMENT
1. Acknowledgment of Franchise and Non-Franchise Obligations.
1.1 Acknowledgment - WOW hereby acknowledges all of the commitments, duties
and obligations, present, continuing and future, as set forth in the Franchise dated
January 28, 1998, by and between the predecessors in interest to WOW.
1.2 Compliance with Franchise - (a) For all periods prior to this Assignment of the
Franchise, WOW warrants that Americast has represented that Americast has
complied fully with any and all of the terms and conditions set forth in the
Franchise, and all applicable federal, state, and local laws; and (b) For all periods
from and after the Assignment of the Franchise, WOW agrees to comply fully
with any and all of the terms and conditions set forth in the Franchise, and all
applicable federal, state, and local laws.
1.3 City's Reliance Upon Representations of WOW - WOW acknowledges and
agrees that the City's consent to the Assignment of the Franchise is made in
reliance upon the representations, documents, and information provided,
respectively, by Americast and WOW in connection with the Application, all of
which are incorporated into this Assignment Agreement by reference including,
without limitation, the Application and all exhibits thereto.
2. No Waiver. WOW agrees that:
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2.1 Investigation of Franchisee's Oualifications - Any consent given by the City in
this Assignment of the Franchise Agreement and in Resolution is made
without prejudice to, or waiver of, the City's right to fully investigate and
consider WOW, and their financial, technical and legal qualifications and any
other relevant considerations during any future franchise renewal process; and
2.2 WOW's Defaults - At no time after the assignment of the Franchise, particularly
during any franchise renewal process, will WOW contend, directly or indirectly,
that the City is barred, by reason of the Assignment of the Franchise, from
considering, or raising claims based on WOW's or Americast's defaults, their
failure to comply with the terms and conditions of the Franchise, or with
applicable law including, without limitation, any claim raised by the City against
WOW or Americast for the underpayment of franchise fees; and
2.3 WOW's Compliance - By its approval of the assignment of the Franchise and
execution of this Assignment Agreement, the City waives none of its rights with
respect to WOW's compliance with the terms, conditions, requirements, and
obligations set forth in the Franchise, including any right of the City to compel
WOW to comply with the Franchise.
3. Representations and Warranties.
3.1 Representation and Warranties of WOW - WOW hereby represents and warrants
that: (a) this Assignment Agreement constitutes a legal, valid and binding obligation
of WOW and is enforceable in accordance with its terms; and (b) the execution and
delivery of, and performance under, this Assignment Agreement is within WOW's
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power and authority without the joinder or consent of any other party and has been
duly authorized by all requisite action and is not in contravention of WOW's charter,
bylaws and/or other organizational documents.
3.2 Representations of WOW - WOW is duly organized and legally exists under the
laws of the state of Delaware and is also authorized to do business in each state in
which it owns assets or conducts business. WOW hereby agrees to indemnify and
hold City harmless against any loss, claim, damage, liability or expense (including,
without limitation, reasonable attorney's and auditor's fees) incurred as a result of any
representation or warranty made by WOW.
4. Future Transfers/Assignment. WOW hereby agrees that any future assignment and/or
transfer of the Franchise and the System shall only occur upon the review and
approval of the City in accordance with 47 United States Code 9 537, the Franchise
Agreement and any other applicable law.
5. Acceptance of the Assignment of the Franchise Agreement. By entering into this
Assignment Agreement, WOW hereby: (i) accepts, and agrees to comply with, the
obligations under each provision hereof; and (ii) acknowledges and accepts the City's
right to consent to the assignment of the Franchise pursuant to the Franchise, and to
enter into this Assignment.
6. Effect of Failure to Satisfy This Assignment Agreement. If WOW fails to satisfy the
conditions in this Assignment Agreement or violates any material provision of this
Assignment Agreement prior to the final consummation of the closing of the sale
between Americast and WOH, the City may, after giving WOW at least thirty (30)
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days written notice, and if such failure is not cured or resolved within such thirty (30)
day period, declare the City's consent to the assignment of the Franchise and that this
Assignment Agreement to be null and void and of no force and effect.
7. Notice of Consummation of the Assignment of the Franchise. WOW will notify the
City of final consummation and closing of the Asset Purchase Agreement between the
Americast and WOH and the assignment of the Franchise within thirty (30) business
days after such consummation. Failure to deliver such notice will be deemed to be a
violation of the Franchise.
8. Miscellaneous Provisions.
8.1 Fees and Expenses. Within thirty (30) days of the closing of the Asset Purchase
Agreement, WOW shall reimburse the City for its reasonable attorney costs
and consultant fees incurred up to a total of Two Thousand Five Hundred
Dollars (US $2,500.00) in connection with the Assignment Agreement and the
Assignment of the Franchise.
8.2 Binding Agreement - This Assignment Agreement shall bind and benefit the
parties hereto and their respective heirs, beneficiaries, administrators,
executors, receivers, trustees, successors and assigns, and the promises and
obligations herein shall survive the effective date hereof.
8.3 Governing Law - This Assignment Agreement shall be governed in all respects
by the laws of the State of Ohio and applicable federal and local laws.
8.4 Severability and Enforceability - In the event of a determination in any judicial
or administrative proceeding that any provision of this Assignment Agreement
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is unenforceable or invalid, the parties shall enter into good-faith negotiations
with the intent of reaching an agreement that would place the City, WOW, and
the subscribers substantially in the same position as if this Assignment of the
Franchise Agreement were fully enforceable.
8.5 Time of the Essence - In determining whether a party has complied with this
Assignment Agreement, the parties agree that time is of the essence. If the
assignment of the Franchise and the System, as contemplated by this
Assignment Agreement, has not been completed by December 31, 2001, WOW
may be required at the City's request to appear before the City Council by
January 31, 2002, and provide a detailed explanation as to why the assignment
has not been completed.
8.6 Counterparts - This document may be executed in multiple counterparts, and by
the parties hereto on separate counterparts, and each counterpart, when executed
and delivered, shall constitute an original agreement enforceable against all who
signed it without production of, or accounting for, any other counterpart, and all
separate counterparts shall constitute the same agreement.
8.7 Captions - The captions and headings of this Assignment Agreement are for
convenience and reference purposes only, and shall not affect in any way the
meaning and interpretation of any provisions of this Assignment Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement as of the day and year first above written.
WIDEOPENWEST OHIO, LLC. (WOW)
By:
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Print Name:
Title:
CITY OF DUBLIN, OHIO (City)
By:
Print Name:
Title:
APPROVED AS TO FORM:
City Attorney
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WIDEOPENWEST OHIO, LLC AMERITECH NEW MEDIA, INC.
900 W. Castleton Road, Suite 320 300 South Riverside Plaza, Suite 1800 North
Castle Rock, CO 80104 Chicago, IL 60606
June 6, 200 I
Ms. Anne C. Clarke
Clerk
City of Dublin
5200 Emerald Parkway
Dublin, OH 43017
Re: Sale of Ameritech New Media, Inc. Cable System to WideOpenWest Holdings, LLC;
Application for Assignment of Cable Television Franchise (FCC Form 394)
- Dear Ms. Clarke:
We are pleased to announce the pending acquisition of the cable systems of Ameritech New Media, Inc.
("ANM") by WideOpenWest Ohio, LLC ("WideOpenWest"), a subsidiary of WideOpenWest Holdings, LLC
("WideOpenWest Holdings"). This transaction, when completed, will assure that your residents will continue to be
among a select group of customers across the nation who enjoy all of the benefits of a competitive environment in
the cable television services arena. To that goal, we are enclosing an original and two copies of FCC Form 394 -
Application for Consent to Assignment of Cable Television Franchise consistent with the requirements of the federal
Cable Act and the franchise agreement between ANM and your community. We request your consent, if you
believe it is required, to the assignment of ANM's cable television franchise for your community to WideOpenWest
Ohio, LLC at your earliest convenience. WideOpenWest has enclosed for your consideration a proposed resolution
granting such consent.
In seeking a buyer for the cable system in your community, ANM was mindful of the benefits which
competition in cable services brings to your residents. In that regard, WideOpenWest has (a) the necessary financial
resources; (b) management experience and expertise in the cable television services industry; and (c) state of the art
technological capabilities. WideOpenWest Holdings' management group, with its significant experience in the
competitive cable television service business, has been at the forefront of bringing a new complement of competitive
cable television and broadband services to the residential market.
As you review the Application and accompanying materials, we are confident that you will share in our
enthusiasm for WideOpenWest, and its qualifications. WideOpenWest strives to be a clearly superior alternative to
residential cable television and broadband services offered by incumbent providers. The WideOpenWest business
model contemplates acquiring and building networks designed and built to provide an exceptional cable television
service featuring a full complement of analog and digital video services; and a "best-in-market" Internet connection
with unparalleled speed and reliability. WideOpenWest's objective is to be the market leader in customer care and
the local cable television company of choice.
President and CEO Mark Haverkate, a 2 I -year veteran of the cable television and telecommunications
industry, leads WideOpen West Holdings. Prior to the launch of WideOpen West Holdings in November of 1999,
Mark was executive vice president of RCN Corporation (NASDAQ: RCNe) the nation's first and largest facilities-
based provider of bundled cable, Internet and phone services to residential customers. As one of RCN's founding
members, Mark provided broad strategic counsel and assumed a number of critical leadership roles in city
operations, business development, sales, marketing and corporate branding. Mark also served as president of Cable
Michigan, Inc. and C- TEC Cable Systems as well as an officer and board member of Megacable, Mexico's largest
cable company.
In forming WideOpenWest Holdings, Mark concentrated on building a management team made up of
industry professionals who have a broad array of skills, and have worked in leadership positions in several
competitively based service providing businesses. Together the entire senior management team of the company
averages twenty years of experience in the cable and telecommunications industry. More details about the
WideOpenWest management team can be found at Exhibit I I to the Form 394. Moreover, while not part of the
Ms. Anne C. Clarke
June 6, 2001
Page 2 of2
Application itself, additional materials illustrating WideOpenWest's technical expertise, management experience
and commitment to customer service in other markets are in the pocket of the binder enclosed with this letter.
In addition to its dedicated and experienced management team, WideOpenWest is proud of the support it
continues to receive from its two widely recognized financial partners. Oak Hill Capital Partners, LP, is a $1.6
billion private equity partnership founded by Robert Bass and his team of investment professionals. Robert Bass
and his team of investment professionals, who, through various partnerships, currently manage approximately $10
billion in capital, have been significant investors in the cable and media industries for nearly 20 years. Those
investments have included Wometco Cable Corporation, Georgia Cable Partners, LP Northeastern Cable Partners
LP and Avalon Cable Partners; cable systems representing an aggregate of over 1,000,000 subscribers. Oak Hill
Capital has made and continues to make significant investments across a wide range of industries. Investments to
date include a strategic investment in Cincinnati Bell Inc., which merged with IXC Communications, Inc. to form
Broadwing Communications. In addition to Robert Bass, the partners of Oak Hill Capital include some of the
leading entrepreneurs in the United States, as well as pension funds, university endowments and commercial banks.
Founded in 1989, ABRY Partners, LLC (ABRY) is one of the most experienced and successful private
equity investment firms in North America investing solely in the media industry. ABRY has made investment in
media sub-sectors including broadcast television and radio, broadcast towers, business-to-business publishing and
trade shows, cable television, in-store advertising and marketing, production music, stadium-theater cinemas as well
as other media sub-sectors. The firm presently is investing over $1.5 billion of equity capital on behalf of its 87
limited partners, which include Fortune 100 pension funds, university endowments, leading insurance companies
and commercial banks and high net worth individuals. Since its formation, ABRY has completed over $7 billion of
leveraged acquisitions and other media sector private equity investments. In addition to WideOpenWest, other
ABRY investments include Connoisseur Communications, Citadel Communications (NASDAQ:CITC),
Consolidated Theaters, Cygnus Business Media, Muzak, Network Music, Nexstar Broadcasting, Avalon Cable,
Pinnacle Towers (NASDAQ: BIGT), Quorum Broadcasting, Talent Partners and TV Fanfare.
We invite you to review the enclosed Application and other accompanying materials regarding
WideOpenWest. We look forward to responding to any questions you may have, and to receiving your prompt
consent to our Application. Please direct all communications concerning the Application to Jim Szczepaniak,
Executive Director-Public Affairs, ANM, at 312-526-8076. An officer of WideOpenWest will be available to meet
with you personally and to answer any questions. Please let us know what date you prefer for this meeting.
Very Truly Yours,
~J.JU. ~ ;:;i/J-
Ameritech New Media, Inc. WideOpenWest Holdings, LLC
Dave Mahachek Mark Haverkate
President President & CEO
Enclosures
Department of Service
6351 Shier-Rings Road' Dublin, Ohio 43016-1243
CITY OF DUBLIN Phone: 614-761-6570 Fax: 614-761-6512 Memo
To: All Members Dublin City Council
From: Timothy C. Hansley, City Manager
Initiated by: Dana L. McDaniel, Assistant City Manager/Director of Service
Date: September 13, 2001
Re: Resolution 44-01
Staff recommends passage of Resolution 44-01 (attached), which approves the transfer of the
Ameritech New Media, Inc. cable television franchise to WideOpen West, LLC. WideOpen West
Ohio, LLC and Ameritech New Media, Inc. announced the sale ofthe Ameritech New Media in
June (letter attached), at which time they submitted the required FCC form to the City. Legal staff
has reviewed the FCC form and concurs it meets the requirements set forth by the FCC.
Authorizing transfer of this Franchise will enable Dublin residents to continue to have access to
competitive cable services. Questions regarding the transfer of the franchise may be addressed to
Dana McDaniel at work: 410-4751 or mobile: 206-3311.
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